New ethics head has clashed over rules
WASHINGTON — David J. Apol, named by President Donald Trump last week as the new head of the Office of Government Ethics, has repeatedly clashed with colleagues over his career at the agency as he sought to roll back or loosen ethics requirements on federal employees, including those in the White House, three former senior officials at the agency said.
Apol’s former colleagues praised his intelligence and his experience as a federal government ethics lawyer at a halfdozen different agencies, including the White House, over three decades.
But the tension has been building for at least a decade, during two stints Apol served at the Office of Government Ethics, his former colleagues said. Apol has argued that the agency is often too rigid in interpreting conflictof-interest laws, they said.
As recently as this spring, Apol had a disagreement with Walter M. Shaub Jr., the departing director, when Apol suggested that Derek T. Kan, a senior executive at Lyft, the car-sharing service, should not be required to sell his vested stock options in the company before he accepted a job at the Department of Transportation as the head of policy.
Shaub said he overruled Apol, who has served as general counsel of the agency since 2014, arguing that many policy matters now before the Department of Transportation could affect Lyft’s financial fate — including possible actions related to self-driving cars and the car-sharing industry.
“It was so immediately obviously crazy,” Shaub said. He said Apol’s general approach to government ethics was “looseygoosey.”
In an interview on Tuesday, Apol conceded that he had at first questioned whether a divestment was necessary in this case, although he added that he ultimately agreed with Shaub. But he proudly acknowledged that he had frequently raised questions about how the agency interprets federal ethics laws that govern the activity of 2.7 million federal employees in more than 130 executive agencies, including the White House.
“As an attorney in the office, I thought it was useful to ask if all the assumptions we made and practices we had were necessarily the best way to do things,” Apol said. “I would oppose changing the rules in any way that did not protect the public’s trust.”
One early test for Apol could be a decision he must make on Anthony Scaramucci, recently named as Trump’s communications director. Scaramucci seeks a tax break that will help him save tens of millions of dollars when he sells his stake in the investment firm SkyBridge Capital.
So-called certificates of divestiture are offered to incoming federal employees as a way to make it easier for the wealthy to take government jobs without major tax consequences. But Shaub has questioned if Scaramucci is entitled to such a benefit because he had entered into a deal to sell his stake in SkyBridge before he was hired for the White House communications job.
Apol said he had not yet decided if Scaramucci should get the tax benefit.
“The test whether we issue a CD is whether or not it meets the requirements in the law,” Apol said, referring to the certificate of divestiture. “If it does, we will; if it doesn’t, we won’t.”
In the past seven months, Apol has played a central role in making major ethics decisions related to the Trump administration, including reviewing the financial disclosure report and issuing certificates of divestiture for Jared Kushner, the president’s son-in-law, and for other senior appointees.
Already, according to staff members at the Office of Government Ethics, Apol has advocated consulting with the White House before he issues certain policies — like one establishing rules related to legal defense funds that some Trump administration officials are setting up. He also wants to check with the White House before the office sends letters to members of Congress who have raised questions about White House ethics matters.
“Moves like this jeopardize OGE’s independence,” Shaub said.
Lindsay Walters, a White House spokeswoman, said that Apol, who is serving in an acting capacity, is a positive change compared with Shaub, who often sparred with Trump.
“The White House welcomes a return to a traditional working relationship with the Office of Government Ethics in which both entities share a common goal of ensuring public confidence that the executive branch is adhering to the highest possible ethical standards as opposed to an approach whereby individuals manufacture false conflicts for purposes of self-promotion,” she said in a statement.
Other former agency employees said they wondered if at times Apol had gone too far in questioning agency standards.
Richard M. Thomas, who served as associate general counsel at the agency until 2011, said that Apol challenged him when he was preparing new limits on the kinds of jobs federal employees can take after they leave public service, the so-called revolving-door rules.
Apol had argued that a former government official, who had helped oversee the issuance or management of a government contract, should be allowed to take a job with the company that won the contract and then interact with his former colleagues, despite a ban on lobbying by former agency officials. The argument Apol made was that this work was not necessarily an attempt to influence the government, which is prohibited, but instead might be just helping the company deliver services. Again, Apol was overruled. “Dave Apol is undeniably smart,” Thomas said. “However, in my experience, Dave had a tendency toward idiosyncratic legal interpretations that frequently were more permissive than OGE orthodoxy.”
Apol has more recently argued that individual agency supervisors — not top bosses at federal agencies — should be able to grant waivers to federal employees to engage in otherwise prohibited activities, such as participating in a government decision that might affect a company they have financial ties to, Shaub said. These issues have come up frequently in the Trump administration, which has hired dozens of former industry lobbyists and lawyers to regulate the industry sectors they once worked in.
Marilyn L. Glynn, who served as general counsel in the Office of Government Ethics and acting director during part of President George W. Bush’s administration, said Apol had argued that a federal employee with an ownership interest in a particular company should be allowed to take an action that affects that company, under a strict reading of the law, as long as the employee has no reason to believe it would increase the company’s stock price. She said she rejected that as contrary to federal law, and almost impossible to enforce.
But she said she welcomed his testing of the rules. “It is good to have people pushing back and reexamining your historic way of interpreting things,” Glynn said. “But he is a little on the fringes of unconventional interpretations.”
Apol first served at the Office of Government Ethics during the George W. Bush administration, after stints at the Department of Labor, the Senate Ethics Committee and the White House Counsel’s Office during President Bill Clinton’s administration.
He returned to the agency in January 2014, after several years at the Office of the U.S. Trade Representative, when Shaub hired Apol as his general counsel. Shaub called him, at the time, a “gifted legal professional with a deep understanding of the federal ethics rules and an appreciation for the core principles underlying them.”
Shaub said he welcomed Apol’s thoughts in ethics debates, as Apol often had a contrarian view that could help the agency balance its approach to interpreting federal laws.
But Shaub said he was worried that with Apol in charge, decades’ worth of ethics rulings might be revised in a way that will make it easier for Trump and members of his administration to bend federal ethics rules.