Waiver - Graham

The Deputy Secretary of Energy
Washington , DC 20585
July 2, 2010
MEMORANDUM FOR BOB GRAHAM

CO-CHAIR
NATIONAL COMMISSION ON THE BP DEEPWATER
HORIZON OIL SPILL AND OFFSHOIDIZ`ILLING
FROM: DANIEL B. PONEMA
SUBJECT: Conflict of Interest Waiver Pursuant to 18 U.S.C. § 208(b)(3)
This memorandum grants you a waiver pursuant to 18 U.S.C. § 208(b)(3), to allow your
participation as a member of the National Commission on the BP Deepwater Horizon Oil
Spill and Offshore Drilling ("Commission"), an advisory committee established by
Executive Order 13543 on May 22, 2010.
Section 208(a), Title 18, United States Code, prohibits you from participating personally
and substantially, as a Government employee, in any particular matter in which, to your
knowledge, you or your spouse, minor child, general partner, or any person or
organization in which you are serving as officer, director, trustee, general partner, or
employee, or any person or organization with whom you are negotiating or have any
arrangement concerning prospective employment, has a financial interest. This
prohibition applies equally to special Government employees (SGEs).' Section 208(b)(3)
provides that subsection (a) shall not apply if, in the case of a SGE serving on an advisory
committee within the meaning of the Federal Advisory Committee Act (FACA), the
official responsible for the SGE's appointment, or his designee, certifies in writing that
the need for the employee's service outweighs the potential for a conflict of interest
created by the financial interest involved.
The objective of the Commission is to examine the relevant facts and circumstances
concerning the root causes of the Deepwater Horizon explosion, fire, and oil spill, and to
develop options to guard against and mitigate the impact of any oil spills associated with
offshore drilling in the future. In developing such options, the Commission must
consider the environmental, public health, and economic effects of such options,
including those options that involve: improvements to Federal laws, regulations, and
industry practices applicable to offshore drilling that would ensure effective oversight,
1 18 U.S.C. § 202(a).
2 Pursuant to Executive Order 12674 and a delegation from the Secretary of Energy, I have the authority to
issue conflict-of-interest waivers for SGEs serving on advisory committees.
Printed with soy ink on recycled paper

monitoring, and response capabilities; protecting public health and safety, occupational
health and safety, and the environment and natural resources; addressing affected
communities; and organizational or other reforms of Federal agencies or processes
necessary to ensure such improvements are implemented and maintained.
As part of your duties, you will be responsible for providing your expertise to the
President in addressing how to prevent - and mitigate the impact of - any future spills
that result from offshore drilling. Specifically, the Commission will work to determine
the causes of this catastrophe and the safety and environmental protections we need to
prevent a similar disaster from happening again. In order to fulfill this mission in such a
short timeframe, individuals with a deep understanding of the technology and operation
of offshore drilling platforms, environmental standards, health standards, industry
practices, and the economic impacts of such disasters on the Nation are needed.
The President is looking to the Commission to assist in the United States' efforts in
determining the root causes of this national disaster and prevent a repeat of such
catastrophe. You served two terms as Florida's governor, and represented Florida as a
United States Senator for almost twenty years. During that time, you earned a reputation
as a champion of the environment, leading the most extensive environmental protection
effort in the state's history. Following your retirement from the U.S. Senate, you served
as Chairman of the Commission on the Prevention of Weapons of Mass Destruction
Proliferation and Terrorism whose mandate was to build on the work of the 9/11
Commission. Recently, you were also appointed to serve as a Commissioner on the
Financial Crisis Inquiry Commission, established by Congress to examine the global and
domestic causes of the recent financial crisis. That Commission will provide its findings
and conclusions in a final report due to Congress on December 15, 2010. Lastly, you
have been recognized by national and Florida organizations for your public service
including The Woodrow Wilson Institute award for Public Service, The National Park
Trust Public Service award and The Everglades Coalition Hall of Fame. It is this
experience that uniquely qualifies you to serve as a Co-Chair of this Commission.
You have disclosed a number of investment interests that could potentially be affected by
the advice of the Commission. Specifically, you have a stock interest in the following
companies: Apache Corporation, Chevron Corporation, Devon Energy Corporation, ENI
SPA SPONS ADR, Gazprom OAO Sports ADR, Helmerich & Payne Inc., Hess
Corporation, Occidental Petroleum Corporation, Petroleo Brasileiro SA ADR, Repsol SA
Sponsored ADR, Royal Dutch Shell PLC ADR, Statoilhydro ASA SPONS, Talisman
Energy, Inc., Total SA SPONS ADR, XTO Energy Inc., National Grid PLC, EON AG
ADS, GDF Suez SP ADR, and Ishares Trust of Dow Jones US Energy Sector. The assets
you own qualify, individually, as de minimis holdings under section 5 C.F.R. § 2640,
Subpart B. In the unlikely event, however, that a specific party matter affects some or all
of the companies in which you have an interest, the aggregate value of your interests may
exceed the de minimis limits set forth in regulation. As a cautionary measure, this waiver
is being issued to allow you to participate in any particular matter that has a direct and
predictable affect upon the financial interests of these entities.
Moreover, you have informed Department officials that you voluntarily sold your stock
interest in BP and Transocean in order to remedy an actual conflict of interest. This
action will mitigate any real or apparent conflict of interest.
You have also advised that you serve on the Board of Directors of the Graham
Companies, Bok Tower Gardens, Wellcare Health Plans, American Institute of Certified
Public Accountants, and ACT, Inc. Pursuant to 18 U.S.C. 208, you cannot participate in
particular matters that have a direct and predictable effect upon the financial interests of
organizations in which you serve as a member of the Board of Directors, unless you first
obtain a written waiver or qualify for a regulatory exemption. Therefore, in the unlikely
event that such matter arises, this waiver shall apply to any particular matters that have a
direct and predictable effect upon the financial interests of Graham Companies, Bok
Tower Gardens, Wellcare Health Plans, American Institute of Certified Public
Accountants, and ACT, Inc.
You have further advised Department officials you serve on advisory boards of the H. Lee
Moffitt Cancer Center & Research Institute. Although this position does not create a
conflict of interest within the meaning of 18 U.S.C. §208, it is appropriate to mention it
because it creates a covered relationship pursuant to 5 C.F.R. §2635.502. As a result, you
are required to be recused from a particular matter involving specific parties in which H.
Lee Moffitt Cancer Center & Research Institute is a party or represents a party, unless
authorized. It is highly unlikely that such matter will arise; however, in the event it does,
I authorize your participation because your service on the Commission outweighs the
appearance of a conflict, pursuant to 5 C.F.R. § 2635.502(d).
Balancing the potential for conflict based on the assets represented in your total portfolio
and positions, against your unique qualifications, extensive knowledge of the oil and gas
industry gained through your experiences in the Federal government, non-profit
organizations, and private industry, and your availability to serve on this committee, it is
appropriate to issue this waiver. Significant to this analysis is that fact that the companies
and organizations in which you have a financial interest have different interests with
respect to the various issues surrounding the work of the Commission. All of these
companies and organizations may not have simultaneous interests in each stage of the
Commission's study; rather, their interests may be limited to various specific inquiries,
meaning that the conflict is likely to be more limited than all of assets listed above
Federal advisory committees, like the Commission, are also unavoidably composed of
persons who have been employed by or have other interests in the subject matter related
to Commission. The fact that a member may have a financial interest that may be affected
is simply unavoidable in view of the work and membership of the Commission.
Furthermore, the purpose of a Federal advisory committee is to provide advice and
recommendations to the Federal government . Your position is advisory in nature , and you
do not, nor does any other Commissioner , have the authority to issue a final decision
binding the Federal government. Federal advisory committees are also subject to FACA
which requires that the membership of the Commission be balanced in its viewpoints.
This balance dilutes the impact any one member has over the Commission . Lastly,
FACA requires that Commission recommendations be deliberated in public. The
requirement that this be a transparent process gives the public the opportunity to
participate and comment on positions taken by Commissioners and the Commission as a
whole.
The President chose you to lead this unprecedented effort because of the expertise you
have gained through your past and current positions which will be an invaluable asset to
the Commission as it addresses this national emergency. As such, I find that the need for
your services outweighs the potential for a conflict of interest created by your financial
interests. This waiver shall apply to particular matters of general applicability and specific
party matters affecting the companies, organizations, and other financial interests listed
above insofar as it creates a conflict of interest with your official duties on the
Commission.
Pursuant to 5 C.F.R. § 2640.303, the Office of Government Ethics has been consulted on
this waiver, has no objection to its issuance, and will be provided with a copy of it.
cc: Susan Beard , Designated Agency Ethics Official

Waiver - Graham

Uploaded by

Copyright:

Available Formats

Waiver - Graham

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Waiver - Graham

Uploaded by

Copyright:

Available Formats

The Deputy Secretary of Energy

MEMORANDUM FOR BOB GRAHAM

FROM: DANIEL B. PONEMA

SUBJECT: Conflict of Interest Waiver Pursuant to 18 U.S.C. § 208(b)(3)

Printed with soy ink on recycled paper

cc: Susan Beard , Designated Agency Ethics Official

You might also like