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The Stock Act: an Independent Review of the Impact of Providing Personally Identifiable Financial Information Online

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The Stock Act: an Independent Review of the Impact of Providing Personally Identifiable Financial Information Online A Report by a Panel of the NATIONAL ACADEMY OF PUBLIC ADMINISTRATION Submitted to the Congress and the President of the United States THE STOCK ACT: AN INDEPENDENT REVIEW OF THE IMPACT OF PROVIDING PERSONALLY IDENTIFIABLE FINANCIAL INFORMATION ONLINE March 2013 National Academy of Public Administration ® ABOUT THE ACADEMY The National Academy of Public Administration is a non-profit, independent organization of top public management and organizational leaders who tackle the nation’s most critical and complex public management challenges. With a network of over 750 distinguished Fel- lows and an experienced professional staff, the Academy is uniquely qualified and trusted across government to provide objective advice and practical solutions based on systematic research and expert analysis. Established in 1967 and chartered by Congress in 1984, the Academy continues to make a positive impact by helping federal, state and local governments respond effectively to current circumstances and changing conditions. Learn more about the Academy and its work at www.NAPAwash.org. March 2013 The STOCK Act An Independent Review of the Impact of Providing Personally Identifiable Financial Information Online Submitted to the Congress and the President of the United States PANEL David S. C. Chu, Ph.D.* Janice R. Lachance, Esq.* Martha Joynt Kumar, Ph.D.* Ronald Sanders, Ph.D.* Vice Admiral Lewis Crenshaw (Ret.)* *Academy Fellow Officers of the Academy Diane M. Disney, Chair of the Board Robert J. Shea, Vice Chair Dan G. Blair, President and Chief Executive Officer B. J. Reed, Secretary Sallyanne Harper, Treasurer Project Staff Joseph P. Mitchell, III, Director of Project Development Joseph Thompson, Project Director Doris Hausser, Ph.D.*, Senior Advisor Hannah Sistare*, Senior Advisor Suzanne Rich Folsom, Esq., Senior Advisor Neal O’Farrell, Senior Advisor Andrew Price, Research Associate _______________________________________________________________________ The views expressed in this report are those of the Panel. They do not necessarily reflect the views of the Academy as an institution. National Academy of Public Administration 900 7th Street, N.W. Suite 600 Washington, DC 20001-3888 March 2013 Printed in the United States of America * Academy Fellow FOREWORD “A popular Government without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both.” James Madison Public service is a public trust. As a nation, we must ensure that our public servants adhere to the highest ethical standards while protecting their rights as individuals. A body of law has developed over the years to prevent insider trading, conflicts of interest, abuse of authority, and other ethical violations. In April 2012, Congress passed the Stop Trading on Congressional Knowledge (STOCK) Act to address concerns about reported insider trading in the federal government. This Act included a provision requiring that the financial disclosures of Members of Congress, legislative staff, and certain executive branch officials be made available in a searchable, sortable, online database. Groups representing senior federal employees strongly objected to this online posting requirement and they assert it places agency missions, employees, and families at risk. This requirement is currently the subject of a federal lawsuit. Recognizing the need to balance the promotion of transparency and openness in government with the protection of employee privacy, Congress directed that the National Academy of Public Administration (the Academy) conduct a review of the Act’s online posting provisions for senior federal officials. The Academy formed an independent, five-member Panel to analyze the potential effects of this provision and to report its findings and recommendations to Congress and the President. The Panel determined that the Act’s online posting requirement does little to help detect conflicts of interest and insider trading, but that it can harm federal missions and individual employees. As a result, the Panel recommended that the online posting requirement be indefinitely suspended while continuing implementation of all other provisions of the STOCK Act. As a Congressionally chartered non-partisan and non-profit organization with over 750 distinguished Fellows, the Academy brings knowledgeable experts together to help public organizations address their most critical challenges. I am especially pleased that the Academy has had the opportunity to assist Congress and the President to address this important topic. I appreciate the support the Academy received from both the Congress and Executive Branch agencies during the conduct of this study. I want to especially thank our Panel, led by the Honorable David Chu, who provided invaluable expertise and thoughtful analysis to this undertaking, and the professional study team, under the direction of Joe Thompson, that provided critical research support. This review could not have been conducted without their dedicated service. Dan G. Blair President and CEO i ii TABLE OF CONTENTS FOREWORD.................................................................................................................................. i ACRONYMS AND ABBREVIATIONS LIST ......................................................................... vii EXECUTIVE SUMMARY ......................................................................................................... ix CHAPTER 1: BACKGROUND ..................................................................................................1 THE STOCK ACT .....................................................................................................................1 THE ACADEMY STUDY ........................................................................................................4 Study Methodology ...........................................................................................................4 Report Organization ..........................................................................................................5 CHAPTER 2: ETHICS REVIEWS IN GOVERNMENT .........................................................7 OVERVIEW ..............................................................................................................................7 HISTORY OF THE ETHICS IN GOVERNMENT ACT .........................................................9 THE STOCK ACT OF 2012....................................................................................................12 STOCK Act Amendments ..............................................................................................14 Litigation .........................................................................................................................15 Online Availability of Financial Disclosure Forms ........................................................15 CURRENT ETHICS PROCESSES IN THE THREE BRANCHES OF GOVERNMENT ...........................................................................................................17 Executive Branch ............................................................................................................17 Legislative Branch ..........................................................................................................24 Judicial Branch................................................................................................................28 SUMMARY .............................................................................................................................31 CHAPTER 3: RESEARCH .......................................................................................................33 OVERVIEW ............................................................................................................................33 REASONS CITED IN FAVOR OF POSTING DISCLOSURES ONLINE ...........................33 Congressional Discussions..............................................................................................33 Presidential Statements ...................................................................................................34 Other Reasons Cited in Favor of Posting Disclosures Online ........................................34 REASONS CITED IN OPPOSITION TO POSTING DISCLOSURES ONLINE .................36 General Concerns ............................................................................................................37 Mission Concerns............................................................................................................37 iii Individual Concerns ........................................................................................................40 Concerns of Ethics Officials ...........................................................................................41 OTHER RESEARCH PERSPECTIVES .................................................................................45 President’s Executive Order on Improving Critical Cybersecurity Infrastructure ....................................................................................45 Asset Disclosure Regimens for Public Officials in Other Countries ..............................46 Multilateral Organization Approach to Conflicts of Interest ..........................................48 Corporate-Sector Approach to Managing Conflicts of Interest ......................................49 SUMMARY .............................................................................................................................51
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