Humanizing Federal Ethics: Motivating and Mobilizing Compliance Through Creative Outreach

• Publication year: 2022

51 Creighton L. Rev. 713. HUMANIZING FEDERAL ETHICS: MOTIVATING AND MOBILIZING COMPLIANCE THROUGH CREATIVE OUTREACH

HUMANIZING FEDERAL ETHICS: MOTIVATING AND MOBILIZING COMPLIANCE THROUGH CREATIVE OUTREACH

ALICE BARTEK-SANTIAGO(fn*)

ABSTRACT

To ensure the integrity and the impartiality of the work carried out on behalf of the United States government, federal employees of the executive branch are subject to a code of ethics outlined in the Code of Federal Regulations and the United States Code. For these regulations to be effective, the onus falls on the individual employee to conform his conduct to meet these standards. Thus, the challenge for federal ethics attorneys is to promote compliance with the federal ethics program. Two methods of promoting compliance are increasing employee awareness of their ethics obligations and understanding the most effective employee motivators. By comparing how federal ethics officials improve awareness within their own agencies and the tools they use to encourage employee compliance, this Article will suggest best practices for ethics officials across the executive branch.

I. INTRODUCTION

There is a database of the federal government's worst ethical violations called the Encyclopedia of Ethical Failure.(fn1) At nearly 200 pages long, it is a tome dedicated to publicly shaming federal hooligans bent on wasting taxpayers' time and money while offering officials cautionary tales to use in training their own employees. Infractions run the gamut from credit card fraud to moonlighting to unauthorized personal use of government helicopters. Some offenses were small, others were large, but all were avoidable. The introduction instructs the reader to heed the ethics violations contained within the collection as warnings.(fn2) It also suggests that "[m]any of the cases displayed in th[e] collection could have been avoided completed if the offender had taken th[e] simple precaution" of contacting an agency ethics counselor when he or she became uncertain about the proper course of conduct.(fn3)

Public officials who misuse their positions for their own financial benefit erode public confidence in the federal government's ability to act with integrity and impartiality. Though the number of bad actors represents only a small percent of the over 2.7 million federal civilian employees across the executive branch, their actions have a lasting impact on public trust. The legacy of past scandals culminates today in an executive-branch-wide ethics program and a series of comprehensive regulatory and statutory ethics laws.

While the ethics laws establish a code of conduct for government employees, the ethics program promotes and monitors compliance. Agency ethics officials play a critical role in the ethics program's day-to-day activities by working directly with federal employees to detect, prevent, and mitigate potential violations. Two of the primary challenges agency ethics officials face are ensuring employees are aware of their ethics obligations and encouraging compliance with a set of rules that can seem convoluted and outdated at times.

Section II of this Article outlines the current regulatory and statutory ethics laws designed to prevent conflicts of interest. These laws establish the executive-branch ethics program and directly govern employee conduct. While employee conduct is primarily governed by 5 C.F.R. § 2635, the Standards of Ethical Conduct for Employees of the Executive Branch ("Standards of Ethical Conduct"), there is a number of other civil and criminal laws that establish further ethics obligations for federal employees. Though comprehensive, these rules have been criticized as overly complicated to the extent that even an ethics conscious employee may struggle to understand the laws and their implications.

Section III of this Article discusses the structure of the current ethics program, which focuses on prevention and relies on voluntary compliance by employees. By working directly with agency employees, ethics officials are in a unique position to prevent, detect, and mitigate potential conflicts of interest. Because the primary focus of the program is prevention, ethics officials do not possess the ability to enforce ethics laws and regulations. Therefore, the work performed by ethics officials is most effective before a violation occurs. Focusing on outreach to raise awareness of ethics obligations and maintaining close relationships with other offices within the agency, such as Human Resources and the Office of Inspector General, are critical for successful implementation of the ethics program.

FINALLY, SECTION IV of this Article discusses the challenges faced by ethics officials and recommends best practices. Two of the biggest challenges ethics officials face are ensuring awareness of ethics obligations and motivating employee compliance with the ethics rules. Violations of the ethics laws and regulations can have severe consequences for both the employee and the agency. Therefore, ethics officials need to take creative approaches to overcome these challenges. By examining how different federal agencies raise awareness and encourage compliance, Section IV will suggest several best practices for agency ethics officials to ensure successful implementation of their ethics program.

II. CODIFYING ETHICS

To ensure public confidence in the integrity of the federal government, executive branch employees are held to a high standard of ethics. While the Standards of Ethical Conduct operates as the largest collection of executive branch standards for ethical conduct, these regulations represent only a small part of the ethics rules governing employee conduct. Employees are also subject to a number of civil and criminal ethics laws aimed at addressing conflicts of interest and combating corruption. However, the current federal ethics laws are often highly detailed and complicated, so even an employee that wishes to comply with the rules may struggle to understand them.

A. A BRIEF HISTORY OF MODERN ETHICS LAWS AND THE ETHICS IN GOVERNMENT ACT OF 1978

After The Watergate Scandal, Congress passed the Ethics in Government Act of 1978(fn4) (the "Act") in response to perceptions of abuse in both the executive and legislative branch.(fn5) The Act established the Office of Government Ethics ("OGE"),(fn6) financial disclosure requirements for federal personnel,(fn7) and government-wide limitations on outside earned income and employment for executive branch employees.(fn8) Further ethics reforms occurred in 1989 when the President's Commission on Federal Ethics Law Reform recommended replacing individual agency standards of conduct with a single regulation applicable to all executive branch employees.(fn9) In response, President George H.W. Bush signed Executive Order 12674 on April 12, 1989, which was later modified by Executive Order 12731.(fn10) These orders laid out fourteen basic principles of ethical conduct and directed the OGE to create a single set of ethics standards for the executive branch.(fn11) In 1992, the OGE published the Standards of Ethical Conduct for Employees of the Executive Branch, which became effective on February 3, 1993 and was codified at 5 C.F.R. pt. 2635.(fn12) This regulation has been amended several times, most recently when the OGE amended its gift rules on November 18, 2016.(fn13)

B. 5 C.F.R. Part 2635: THE STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE EXECUTIVE BRANCH

The current version of 5 C.F.R. pt. 2635 contains nine subparts, each covering a different type of activity that gives rise to conflicts of interest.(fn14) While criticized as mind-numbingly detailed, the regulation serves as the largest comprehensive collection of ethics standards governing employee conduct.(fn15)

Subpart A, General Provisions, serves as the framework for the rest of the regulation by including definitions,(fn16) providing authority to individual agencies to create supplemental regulations when necessary,(fn17) and granting agencies authority to impose corrective or disciplinary action when the regulations are violated.(fn18) Subpart A also includes the fourteen principles established by Executive Orders 12674 and 12731, which serve as the basis for the standards covered in the regulation.(fn19) These fourteen principles establish the broad applicability of the ethics standards by requiring employees to apply the principles in situations not covered by the regulation and to avoid creating even an appearance of violating the law or the ethics standards.(fn20) If employees have any questions about applying the regulation or any supplemental agency regulations to a particular situation, Subpart A encourages employees to seek advice from agency ethics officials.(fn21)

The next seven subparts, B through H, address specific situations that give rise to conflicts of interest and the appearance of conflicts of interest. These situations include: receiving gifts from outside sources, receiving gifts from other employees,(fn22) conflicting financial interests, performing official duties with impartiality, seeking other employment, misusing a position, and engaging in outside activities.(fn23) To protect public trust, these subparts suggest measures employees should take to mitigate any conflicts, or appearances of conflicts. Whether a particular measure is appropriate varies by the nature of the potential conflict.(fn24) The suggested measures...