The President’s Inversion of the Government’s Ethical Conduct Standards, Right Before Americans’ Eyes

Last week President Donald Trump appeared to invert the government ethics dictum that government employees may not be used to run personal errands for their superiors no matter how lofty the superior’s position might be. On the contrary, the president told the American people, in very clear terms, that the importance of Secretary of State Mike Pompeo’s duties warranted using a subordinate government employee’s time for the cabinet member’s personal benefit. Completing the apparent inversion, the president labeled as “stupid” any criticism of Secretary Pompeo’s actions that would amount to his misuse of position (as that term is defined in federal regulations). These were not off the record comments or hurried remarks made while walking to Marine One. The president was seated at the White House fielding questions from reporters alerted to this potential abuse of authority following news stories about the cabinet official in question, and the exchange was being openly recorded.

The president’s sliding scale of less ethics compliance being required the higher an official’s position is completely inapposite to the Standards of Ethical Conduct for Employees of the Executive Branch (Standards of Conduct) and anathema to democratic governance. The president’s comments were both brazen and bizarrely counterproductive — respect for and enforcement of the Standards of Conduct fosters public confidence in our government and its employees. And during the Trump administration several now-former government employees have suffered the consequences of their standards of conduct lapses, violations the president now trivializes.

Before any further harm is done to the executive branch’s ethics program over 40 years in the making, the White House should “clarify” the president’s remarks and reaffirm the importance of — and commitment to — the Standards of Conduct. Or better yet, as unlikely as it may be, the president should admit he was wrong and send a clear and unequivocal message that such abuse of authority is unacceptable.

Because the underlying allegations against Secretary Pompeo may be wrong, or at least as of yet unproven, the White House has even greater opportunity to come out on the right side of this issue.

Secretary of State Pompeo and Personal Errand Allegations

 A reporter asked President Trump whether he was concerned that Secretary Pompeo may have requested that the president fire Steve Linick, the State Department’s Inspector General, because Linick was purportedly investigating Pompeo. Among the purported allegations were that Secretary Pompeo misused his position by having a staff member (a government employee) perform household tasks and run personal errands, including picking up the Pompeos’ dry cleaning, making dinner reservations, and walking the family dog.

President Trump said he didn’t know about the investigation but seemed incredulous at the idea that the allegations, even if substantiated, constituted an issue of any significance. Trump responded to the reporter, “You mean he’s under investigation because he had somebody walk his dog from the government?” The president added:

Now I have you telling me about dog walking, washing dishes, and, you know what, I’d rather have him on the phone with some world leader than have him wash dishes because maybe his wife isn’t there or his kids aren’t there, you know? Maybe he’s negotiating with Kim Jong Un, OK, about nuclear weapons. So that he’d say, “Please, could you walk my dog? Do you mind walking my dog? I’m talking to Kim Jong Un.” Or, “I’m talking to President Xi [Jinping] about paying us for some of the damage they’ve caused to the world and to us, please walk my dog.” To who, a Secret Service person or somebody, right?

President Trump labeled criticism of Secretary Pompeo for having government employees perform household tasks as “terrible” and “stupid.” He also emphasized that the allegations didn’t sound “important.” The president also claimed that if these allegations were considered significant that “this country has a long way to go. The priorities are really screwed up when I read this.”

The issue and concern generated by the president’s comments stand distinct from whether these allegations are true, something yet to be determined (although with the ousting of the Department of State Inspector General one wonders how credible that determination will be). The issue here is with President Trump’s remarks that indicate his view that the allegations that a government employee was misusing their position, even if substantiated, wouldn’t matter.

This article briefly explains the Standards of Conduct and then repeats the well-settled conclusion that requiring subordinate government employees perform household tasks and run personal errands constitutes a clear violation. Indeed, the invalidity of such actions will be recognized by almost all government legal and ethical advisors (and most of their clients) as a violation of “Ethics 101,” thanks to training courses taught annually throughout the government. What’s also immediately recognizable are any number of examples where violations of this specific standard negatively affected if not ended careers.

Standards of Conduct

Ironically, the ethical standards that President Trump labels as “stupid” originated in laws that were passed in the aftermath of the Watergate scandal and a presidential administration that ended in ignominy. The desire to affirmatively require high ethical standards of those serving in government was not a partisan issue. Instead the Ethics in Government Act of 1978, and the resulting creation of implementing regulations governing ethics in government service, were intended to “to preserve and promote the integrity of public officials and institutions.” The late 1970s saw the creation of both the Office of Government Ethics (OGE) and a system of Inspectors General to manage oversight and investigation of ethics lapses.

But those initial efforts were confusing and fragmented and did not eliminate the abuse of public office for private gain. As a result, in 1989, President George H.W. Bush established a commission on federal ethics law reform which issued its report that same year. The introduction included a reminder:

Ethical government means much more than laws. It is a spirit, an imbued code of conduct, an ethos. It is a climate in which, form the highest to the lowest ranks of policy and decision-making officials, some conduct is instinctively senses as correct and other conduct as being beyond acceptance…..[Ethical government] starts with a will at the top to set, follow and enforce ethical standards….Each cabinet officer, head of an agency, subordinate official with supervisory authority – each must lead by example….

The Commission’s report prompted President Bush to issue Executive Order 12731, “Principles of Ethical Conduct for Government Officers and Employees.” In that EO, President Bush tasked the OGE with “[p]romulgating, in consultation with the Attorney General and the Office of Personnel Management, regulations that establish a single, comprehensive, and clear set of executive-branch standards of conduct that shall be objective, reasonable, and enforceable.”

The OGE published the Standards of Conduct in 1992, which became effective in 1993 and are codified in 5 C.F.R. Part 2635. The Standards of Conduct recognize at the outset that ethical conduct by government employees is inextricably linked to public trust. As explicitly recognized in the first of the fourteen overarching principles of ethical service established by these standards, public service is a public trust and “each employee has a responsibility to the United States Government and its citizens to place loyalty to the Constitution, laws and ethical principles above private gain.” To ensure that every citizen can have complete confidence in the integrity of the federal government each employee is required to respect and adhere to the principles of ethical conduct; and the seventh principle states that the employee shall not use public office for private gain.

The Standards of Conduct are broken down into subparts. Subpart G addresses misusing one’s official position, including a subordinate’s time. This includes a superior having a subordinate perform personal errands that are outside the scope of official duties.

Misusing One’s Official Position & Subordinate’s Time

Regarding the use of a subordinate’s time, under the Standards of Conduct, “[a]n employee shall not encourage, direct, coerce, or request a subordinate to use official time to perform activities other than those required in the performance of official duties or authorized in accordance with law or regulation.” The Standards make no exception for the “importance” of the superior’s position or responsibilities, nor for the nature of the tasks demanded of the subordinate.

As the Commission explained in its report, “ethical standards for public servants must be exacting enough to ensure that the officials act with the utmost integrity and live up to the public’s confidence in them…..No part of the of the Federal Government should be satisfied with a standard of less than absolute honesty in the conduct of public officials.” As a result, the standards deliberately establish a bright line rule to avoid exactly the type of dismissiveness reflected in the president’s comments.

The Standards of Conduct provide an example of impermissibly using a subordinate’s time during duty hours involving a government employee asking a secretary to type personal correspondence during duty hours. But far more common are superiors having subordinates run personal errands. And, as the New York Times noted, “[i]t is always the dry cleaning.”

 

Personal Errands & Government Ethics 101

That government employees are prohibited from having subordinates perform personal errands is not some arcane, technical point of law, understandable only to cubicled government lawyers. Its Government Ethics 101 taught and retaught annually by almost 5,000 government ethics officials in more than 130 federal agencies. There is also widespread awareness within government circles that violations of this fundamental rule can negatively impact if not end a government career.

In 2019, Dana White, Assistant to the Secretary of Defense for Public Affairs, resigned following allegations that she misused subordinates’ time to conduct personal services for her. Similarly, in 2018, Scott Pruitt, the now former head of the EPA, misused an aide by having her perform personal errands for him, one issue (among many) leading to his resignation.

Standards of Conduct violations are by no means limited to civilian government employees. During this administration, service-members have suffered the consequences of what the president claims are trivial violations. This has included a Marine Corps general as well as the senior enlisted advisor in the Department of Defense. Indeed, as cataloged in the DoD Standards of Conduct Office’s “Encyclopedia of Ethical Failure,” countless General and Flag officers (and sometimes their spouses) have impermissibly had subordinates perform personal errands, often involving laundry or dry cleaning, or perform household chores, often involving pets.

That government employees may not be used to run personal errands for their superiors is not a new concept. What is new – and completely unacceptable – is the notion the president conveyed that the more senior the government employee and the greater their responsibilities the less we should be concerned about their adhering to ethical standards.

Conclusion

In December 2017, the White House issued a fact sheet, “President Donald J. Trump: Year One of Making America Great Again” which included the claim that “President Trump implemented higher ethical standards to make sure his Administration works for the American people.” It’s unclear when – or why exactly – the president flipped from claiming to have implemented higher ethical standards to asserting that the most basic standards reflect “really screwed up” priorities.

Ethical service is a fundamental responsibility of every federal employee, and its establishment is among the president’s most important duties. A leader’s attitude creates culture within the organization – just as a fish rots from the head, so too does the ethical climate of an organization including a government. What culture regarding ethical standards for public servants do we think President Trump’s comments from last week may create?

It’s been more than a week since the president’s remarks. Perhaps the U.S. Office of Government Ethics will coordinate with the White House and “clarify” the president’s comments and reaffirm the importance of — and commitment to — the Standards of Conduct. But what if there isn’t clarification and “we the people” (continue to) sit passively after the president made clear his view that the higher the government official the less they should be subject to ethics rules?

Then we should see our passivity for what it is — tacit acceptance of new, lower, and inconsistently applied and enforced governmental ethical conduct standards.

Photo credit: White House, May 18, 2020 – Doug Mills-Pool/Getty Images

 

About the Author(s)

Chris Jenks

Chris Jenks served as Special Counsel to the General Counsel of the Department of Defense (2017-2018) where he was awarded the Secretary of Defense Medal for Exceptional Public Service. He is a Professor at the SMU Dedman School of Law. He formerly served as Chief of the U.S. Army’s International Law Branch in the Pentagon. You can follow him on Twitter @ChrisJenks_SMU.