Wise Words on the Importance of Neutral Ethics Advice

Framed in the context of a train wreck waiting to happen, the Department of the Interior was presented with its most complex set of ethical issues with Mr. J. Steven Griles' appointment, at a time that, following years of neglect, demise, and compartmentalization, the ethics program was wholly incapable of addressing them.

As with most political appointees, Mr. J. Steven Griles likely viewed himself as an honest advocate of his administration's agenda. Since political appointees tend to believe that they are good people doing good things for the American public, they sometimes characterize any reasonable review or critique of their ethical behavior as prompted by partisan politics. The federal ethics rules are designed, when properly executed, to both guide and protect the well-intentioned political appointees. Fortunately, the threshold for the criminal ethics statutes is high enough to prevent most appointees from ever reaching it. The most difficult area, however, is the expansive gray area in between, that of "appearances."

Time and time again, the Office of Inspector General has heard from those charged with providing political appointees at the Department with ethical advice that appearance concerns are left to the appointee, reasoning that the appointee is in the best position to make those determinations. This myopic view presumes that the neophyte political appointee fully understands not only the federal government's byzantine ethical standards but also fully appreciates and understands the "fishbowl" mentality of Washington, D.C.

By answering ethics questions from a purely legal perspective, the provider of such advice builds in an inherent defense, should such advice subsequently fail to protect. The resulting disservice to a political appointee is profound. After all, it is not the career of the ethics official or advising SOL [Office of the Solicitor] attorney that is on the line.

Between the Ethics Office and SOL, the combined failure of the ethics "team" in the Department to provide rigorous ethics advice to the political leadership – leaving them, instead, to assess appearance concerns from their own, subjective perspective, rather than that of the "reasonable person" – is, at once, both cowardly and disingenuous. Unfortunately for the appointee, the "reasonable person" standard is a much harsher judge of their conduct than is their well-intentioned subjective perspective. And thus, Mr. Griles and others now find themselves in a highly defensive posture against a cacophony of charges – even if no actual conflicts are found, the cries against the appearance of conflicts of interest drown out any acquittal – when solid, courageous, thorough advice at the outset might well have prevented these appearance problems altogether.

The wholesale failure of the ethics program at the Department emanates from a fundamentally flawed design crafted over time by a cast of negligent architects. Unfortunately, it also threatens to leave a trail of fallen political appointees in its wake.