Ethics questions arise for Ericksen: Can former Trump appointee register as foreign agent?

Image on left: Screenshot photo of paragraph 4 contained in executive order 13770, issued on January 28, 2017 by President Donald J. Trump. Image on right: Still frame photo of Senator Doug Ericksen taken from a March 14, 2019 Inside Olympia program broadcast on TVW.

By Sandy Robson

April 24, 2019

An April 5, 2019 article published in the online version of The Seattle Times reported that Washington state Senator Doug Ericksen (R-Ferndale) registered as a foreign agent for the Kingdom of Cambodia in an April 3 filing with the U.S. Department of Justice, along with former Republican Washington state representative Jay Rodne, of Snoqualmie, Washington.

According to the April 5 Seattle Times article, Senator Ericksen and Rodne registered as foreign agents under a company, PacRim Bridges, LLC to lobby for the Cambodian government.

Corporation registration data available online on the Washington Secretary of State’s website shows that PacRim Bridges, LLC has a registration date of November 28, 2017. The listed directors of the company are Doug Ericksen and Jay Rodne.

Rodne, an attorney, had first started serving as a state legislator in 2004. His final 2-year term as a representative for the 5th Legislative District ended on December 31, 2018, after having announced earlier that year, in February, that he would not seek re-election.

Still frame taken from video of then-Washington state representative Jay Rodne discussing legislation inside the Washington State Capitol building, in Olympia. Video was published on YouTube on January 30, 2018

Rodne’s name may be familiar to some after he came under fire in November of 2015 for what many considered to be bigoted remarks he made about refugees and Islam, as well as controversial remarks he made about the terror attacks in Paris.

The Seattle Times article was based on POLITICO’s report that broke the news earlier that day, on April 5, regarding PacRim Bridges having landed a $500,000 per year lobbying contract from the Cambodian government. The contract stipulates that there be twelve equal monthly payments in the amount of $41,660 paid to PacRim Bridges.

In exchange for compensation paid to PacRim Bridges, the company will meet with state and federal officials “to promote improved relations between the USA and the Kingdom of Cambodia and legislation that promotes improved relations,” according to the Times article.

Since the news broke on April 5 about Ericksen, he has disputed characterizations of the deal between PacRim Bridges and the Cambodian government as being a lobbying contract.

However, Radio Free Asia (RFA) reported on April 9, 2019 that, “Cambodia’s government on Tuesday defended its decision to hire a U.S. state lawmaker to lobby on behalf of its interests in Congress…”

While Ericksen claims that his deal with the Cambodian government is not a lobbying contract, and that he will be acting as a consultant in the arrangement, apparently RFA considers the work the senator will be doing for the Cambodian government to be lobbying — and so do the U.S. news media outlets which have reported about it.

Can a former Trump appointee lobby on behalf of a foreign government?

The April 5 Seattle Times article reported that Ericksen claims his deal with the Kingdom of Cambodia is “100 percent legal,” pointing out that state legislators serve part time and are expected to have outside jobs. Ericksen appears to be making that assertion as it relates to his current job as a state senator representing the 42nd Legislative District, to which he was re-elected by a slim 45-vote margin for a second 4-year term in the November 2018 general election.

Ericksen, however, has not been challenged about whether or not his lobbying or consulting for a foreign government, subsequent to his prior federal employment with the EPA, would be considered to break a commitment to any of the obligations listed in the ethics pledge he would have been required to sign in 2017.

In January of 2017, Ericksen had accepted an appointment to a Temporary Transitional Schedule C position as Senior Advisor at EPA Headquarters in Washington, D.C., that he was offered by the Trump Administration. That appointment was effective on January 21, 2017, and ended on May 20, 2017.

During that temporary 120-day appointment, Ericksen worked full-time hours in his EPA position which had an associated yearly salary of $161,900 (paid hourly) while he simultaneously continued to serve as a state senator in the Washington state Legislature. Ericksen is paid, as a senator, approximately $46,000 yearly, and can collect a $120 per diem.

On January 28, 2017, President Donald J. Trump had issued Executive Order 13770, entitled, “Ethics Commitments by Executive Branch Employees.”

Section 1, “Ethics Pledge” of executive order 13770 states that, “Every appointee in every executive agency appointed on or after January 20, 2017, shall sign, and upon signing shall be contractually committed to, the following pledge upon becoming an appointee…”

Section 4, “Administration” of the executive order states that the head of every executive agency shall establish rules or procedures, as are necessary or appropriate, “to ensure that every appointee in the agency signs the pledge upon assuming the appointed office or otherwise becoming an appointee,” and “to ensure compliance with this order within the agency.”

Appointee positions invested with the public trust

The opening paragraph of the ethics pledge reads:

“As a condition, and in consideration, of my employment in the United States Government in an appointee position invested with the public trust, I commit myself to the following obligations, which I understand are binding on me and are enforceable under law.”

There are nine numbered paragraphs in the ethics pledge which follow after the opening paragraph. Paragraph number 4 of the pledge reads:

“I will not, at any time after the termination of my employment in the United States Government, engage in any activity on behalf of any foreign government or foreign political party, which, were it undertaken on January 20, 2017, would require me to register under the Foreign Agents Registration Act of 1938, as amended.”

In reading executive order 13770, it appears to impose a lifetime ban on lobbying for foreign governments, which makes Senator Ericksen’s lobbying or consulting on behalf of the Cambodian government potentially problematic.

The Foreign Agents Registration Act (FARA) was enacted in 1938. According to the U.S. Department of Justice website:

“FARA is a disclosure statute that requires persons acting as agents of foreign principals in a political or quasi-political capacity to make periodic public disclosure of their relationship with the foreign principal, as well as activities, receipts and disbursements in support of those activities.”

Screenshot photo showing the Foreign Agent Registration Act (FARA) webpage that is displayed on the U.S. Department of Justice website

The FARA Registration Unit of the Counterintelligence and Export Control Section (CES) in the National Security Division (NSD) is responsible for the administrative enforcement of the Act.

According to documents provided in April 5 Seattle Times article, the Registration Statement documents filed by Ericksen and Rodne through PacRim Bridges were received by the NSD/FARA Registration Unit on April 3, 2019.

The documents filed with the NSD/FARA Registration Unit include a copy of the contract for a “Consulting Services Agreement” between the Kingdom of Cambodia and PacRim Bridges. The agreement is dated March 25, 2019, and states that PacRim Bridges shall provide “Consulting and Advisory Services” to its client, the Kingdom of Cambodia, as directed by the client.

The consulting services agreement was signed by Doug Ericksen on behalf of PacRim Bridges, and by Ouch Borith on behalf of the Kingdom of Cambodia. Borith is Cambodia’s Deputy Secretary of State, according to the Registration Statement documents filed by PacRim Bridges with the NSD/FARA Registration Unit.

Also included in the documents filed with the NSD/FARA Registration Unit, is a copy of the Operating Agreement for PacRim Bridges which shows that Ericksen will serve as CEO of the company, and Rodne will serve as general counsel and chief legal officer.

Did Ericksen sign an ethics pledge?

In light of Ericksen’s new activities working on behalf of the Kingdom of Cambodia, Searchlight Review reviewed Freedom of Information Act (FOIA) public records which were released relating to Ericksen’s temporary appointment with the EPA in 2017. Those records released were responsive to FOIA requests and are available on the FOIA website. The Operating Agreement document was provided in an April 5, 2019 AP article, “Washington Senator registers to lobby for Cambodia.”

An April 10, 2017 FOIA request submitted by the Center for Media and Democracy, asked for copies of the signed ethics pledge required under executive order 13770 issued on January 28, 2017 by President Trump, and the request was specific to the names of thirty EPA appointees/employees. One of the names listed in the request was Doug Ericksen.

The FOIA records posted online responsive to that request included copies of numerous individuals’ signed ethics pledges which featured EPA letterhead on them.

Those individuals included, for example, Scott Pruitt, who was appointed in February of 2017 as Administrator for the EPA who later resigned amid ethics scandals in July of 2018 — and Don Benton, a former Republican Washington state Senator from Vancouver who was appointed in January of 2017 as a senior White House adviser supervising the EPA transition. After only three months with the EPA, Benton was suddenly out of the agency, and was then appointed by President Trump to head-up the U.S. Selective Service System, which registers individuals for a potential military draft (the agency has not overseen a draft since 1973).

Even though the Center for Media and Democracy, in its April 10, 2017 FOIA request, had requested the signed ethics pledges for only thirty individuals with the EPA, the agency released copies of signed ethics pledges for sixty individuals. However, out of those sixty, there was no signed ethics pledge for Doug Ericksen.

It is unclear, at this time, whether Doug Ericksen signed an ethics pledge that was somehow not included in the FOIA records released by the EPA, or if he refused to sign an ethics pledge, or if someone provided him some kind of an exception from the requirement to sign the ethics pledge.

Executive order 13770 provides that the President or his designee may grant to any person a waiver of any restrictions contained in the pledge signed by such person.

Seeking confirmation on ethics pledge requirement

On April 18, 2019, Searchlight Review contacted, via telephone, the U.S. Office of Government Ethics (OGE), to inquire about ethics pledges as well as pledge waivers.

The Ethics in Government Act which was passed in 1978, vests the OGE, an independent federal agency, with the responsibility for providing “overall direction of executive branch policies related to preventing conflicts of interest,” according to 5 U.S.C. app. § 402(a). OGE is the supervising ethics office for a decentralized executive branch ethics program established by the Ethics in Government Act. OGE is also responsible for interpreting and issuing guidance on executive order 13770.

During the April 18 telephone call, OGE personnel directed Searchlight Review to refer to the information contained in President Trump’s executive order 13770 he issued on January 28, 2017, saying that it can be viewed on the website.

While the OGE is an oversight agency, each federal agency has an ethics program and ethics office. Each agency has a Designated Agency Ethics Official (DAEO).

There is a DAEO list posted on the OGE website which provides the name and contact information of the designated ethics official (and alternate) for each agency, as well as the assigned OGE Desk Officer.

David Cozad is listed as the DAEO for the EPA, and Justina Fugh is listed as the alternate DAEO. Cozad is Acting Deputy General Counsel in the Office of General Counsel, EPA, and is Regional Counsel at the EPA.

Fugh is Director of Ethics Law Office, Office of General Counsel, EPA, and is Senior Counsel for Ethics at the EPA. Her job is to help EPA employees understand their ethics rules and responsibilities.

On April 18, Searchlight Review spoke, via telephone, to Justina Fugh to further inquire about ethics pledges and pledge waivers as those relate to the EPA. In answering the question about whether or not all appointees (even those appointed to temporary positions) are required to sign an ethics pledge, Fugh referenced President Trump’s executive order 13770 issued in January of 2017. She confirmed that executive order 13770 would apply to every appointee in terms of the ethics pledge they would be required to sign.

No pledge waiver was granted to Ericksen

Regarding ethics pledge waivers, Searchlight Review had reviewed the list of pledge waivers that have been granted which are posted on the website. In reviewing those posted pledge waivers, there is no indication that an ethics pledge waiver was granted to Doug Ericksen.

Screenshot photo showing the list of ethics waivers issued as of May 31, 2017, posted on the website

Fugh, the EPA’s Senior Counsel for Ethics, confirmed to Searchlight Review that there was no ethics pledge waiver granted to Doug Ericksen.

Paragraph number 9 of the ethics pledge states:

“I acknowledge that the Executive Order entitled ‘Ethics Commitments by Executive Branch Appointees,’ issued by the President on January 28, 2017, which I have read before signing this document, defines certain terms applicable to the foregoing obligations and sets forth the methods for enforcing them. I expressly accept the provisions of that Executive Order as a part of this agreement and as binding on me. I understand that the obligations of this pledge are in addition to any statutory or other legal restrictions applicable to me by virtue of Government service.”

It remains to be seen whether or not Ericksen would still be bound by the obligations of the ethics pledge even if he had somehow not signed it.

In addition to the binding obligations outlined in the ethics pledge which appointees and employees commit to, there is also a post-employment federal statute, 18 U.S.C. § 207, “Restrictions on former officers, employees, and elected officials of the executive and legislative branches.”

The statute addresses restrictions that may limit the activities of individuals after they leave government service (or after they leave certain high-level positions).

Thus, it also remains to be seen whether or not any part of the post-employment statute, 18 U.S.C. § 207, would apply to the work Ericksen will be doing on behalf of the Cambodian government in association with the recent contract between his company, PacRim Bridges, and the Kingdom of Cambodia.

It certainly seems that further scrutiny of this matter is warranted. Searchlight Review will continue to look further into this as it is in the public interest to get answers to the outstanding questions and concerns relating to Senator Ericksen’s lobbying work he will be doing for the Cambodian government, subsequent to his employment with the federal government in 2017.