This article was updated at 5:12 p.m. EDT
Amid congressional scrutiny, EPA ethics officials are pushing back on a story about acting Administrator Andrew Wheeler potentially violating the Trump administration’s ethics pledge by meeting with his former lobbying clients.
As E&E News reported yesterday, the K Street veteran has met with three former clients in his first three months as a political appointee at EPA.
Among them is Darling Ingredients, a biodiesel producer that paid Faegre Baker Daniels Consulting more than $1.4 million over nine years for the advocacy efforts of Wheeler and other lobbyists at the firm — more than any other client Wheeler worked for aside from Murray Energy Corp. (Greenwire, July 26).
But it all depends on how you define "former client," said Justina Fugh, EPA’s senior counsel for ethics.
"I don’t think it was fair to call them ‘former clients’ because that’s historically accurate but not legally accurate when it comes to the Trump ethics pledge," she said.
The portion of the pledge Wheeler’s meetings appeared to violate says, "I will not for a period of two years from the date of my appointment participate in any particular matter involving specific parties that is directly and substantially related to my former employer or former clients."
It goes on to define "former client," but it does so in a way that many would find difficult to swallow.
"’Former client’ is any person for whom the appointee served personally as agent, attorney, or consultant within the 2 years prior to the date of his or her appointment," the pledge says.
Therefore, Fugh argued, the former clients Wheeler met with — Darling, agribusiness giant Archer Daniels Midland Co. (ADM) and California’s South Coast Air Quality Management District — aren’t technically "former clients" that the pledge bars him from meeting.
Even Darling, which terminated its lobbying relationship with Wheeler less than 24 months before he took office, doesn’t meet the pledge’s definition of former client, according to Fugh.
There are "three people listed for his termination report" with Darling, she said. "But it doesn’t mean that that’s the date that all three of them last provided lobbying services."
EPA declined to give a specific date on which he last lobbied for Darling.
"He just said that he didn’t provide lobbying services to that entity for two years prior to joining the federal service," Fugh said.
The same is true, she said, for ADM, which paid Faegre more than $5,000 sometime between 2015 and August 2017 for the current acting EPA chief’s "strategic advice and consulting," Wheeler’s financial disclosure report shows.
EPA noted that ethics officials don’t need to know the timing and precise nature of the work political appointees previously did for clients that falls outside the two-year recusal window.
Wheeler last worked for the South Coast Air Quality Management District in 2010, lobbying disclosures show. He told E&E News that year was likely the last time he lobbied EPA.
"I did come in and meet with Gina McCarthy with them, but that was when she was assistant administrator for air," he said of the California air pollution agency (E&E News PM, July 13).
Questions from House Democrats
Government watchdogs argue that whether or not the meetings violated the pledge, they were nonetheless ill-advised.
"Mr. Wheeler should think twice about meeting with any of his former clients," said Scott Amey, the Project on Government Oversight’s general counsel. He pointed to Office of Government Ethics regulations calling on officials to avoid even the appearance of impropriety.
"He shouldn’t be playing fast and loose with the two-year requirement," Amey said, referring to the uncertainty around when Wheeler stopped working for Darling and ADM.
"The public has questions about how the federal government works and agency capture" by industry, he said. "If Mr. Wheeler is holding meetings with former clients that are right up against the cusp of a date of recusal, that calls into question the integrity of the agency and the decisions that are being made."
Rep. Don Beyer of Virginia and several other Democrats also want to learn more about how close Wheeler has come to violating his ethics pledge.
"We also ask that you clarify which clients, and which regulatory matters affecting them, merit future recusals by the Acting Administrator in order to comply with both the spirit and the letter of ethics rules," the lawmakers said this afternoon in a letter to David Apol, the head of the Office of Government Ethics.
Wheeler’s meetings with former clients who aren’t considered "former clients" under the Trump ethics pledge also undermines the value of such vows, according to Amey.
"There are some holes in President Trump’s ethics pledge," he said. "We would like to see Congress tackle some of these issues. Stop with these ethics pledges and ethics orders and codify some of these rules and regulations for any future appointees."
That, he said, would allow EPA and other agencies going forward "to avoid any of the questionable activities that have taken place."
Update: This story was updated to include references to the letter from Rep. Don Beyer (D-Va.) asking the Office of Government Ethics to look into acting EPA Administrator Andrew Wheeler’s meetings with former clients.