January, 2018
Washington -- Federal civil servants would do well to read Ambassador Nancy McEldowney's words of advice about how to conduct themselves in the Trump Administration. She writes about "how civil servants should navigate the ethical and professional minefields that lie before them."
The advice may not be welcomed by all, as it points out obligations that some in the civil service are not prepared to fulfill. She writes that "civil servants...should never allow themselves to further enable the corrosion of ethical norms and accountability standards;" and "[i]f a government worker sees wrongdoing and chooses to look the other way, he or she becomes complicit."
These are strong words, but Ambassador McEldowney reminds us that "every federal employee takes an oath of office and swears to protect the Constitution from all enemies, foreign and domestic." Civil servants: read these lines again. Click here if you haven't already. This is what you signed up for.
It therefore is a little surprising, and disappointing, that the ambassador also advises, in cases when ethical lines are crossed, that public servants should "[r]efuse to comply and if necessary resign." She has already made a compelling case that resigning is the wrong thing to do. Resignation, in my view, should not be presented so casually as a way out of a dilemma. I wish she had qualified resignation with "as an absolute last resort, after exploring all other options."
I suggest that resigning can often be tantamount to admitting the oath we all took is too much to bear, and represents the very complicity she so eloquently argues against. Resignation should not be an easy way out, somehow to soothe the conscience.
From my own experience in these matters, I'd like to point out to civil servants a few routes they can take to make their choices less difficult, all the while fully honoring their oath.
• Make use of the Lloyd-Lafollette Act, which permits civil servants to take their cases to Congress as long as they do it as private citizens. I did this in 2003, when I discovered illegal lender claims in the federal student loan program and revealed them to the Government Accountability Office. GAO soon investigated and wrote a report on which Congress acted.
• Share your situation with colleagues, explaining how wrongdoing is occurring and why you will not be complicit. When I found illegal claims, I explained to several colleagues why they were illegal and what could be done about it. This was ultimately helpful when the Inspector General cracked down and declared the claims illegal, in spite of continuing Department of Education indulgence of them.
• Do not get your hopes up about the Office of Special Counsel, or any other official government body, helping you. OSC has a poor record.* Do not expect fairness or justice from any quarter at any time. There is no clause in your oath that guarantees you fairness or justice when you act to uphold your oath. Be satisfied that you did the right thing and that by so doing, others' backbones were stiffened.
• Do not be forced out. Many upper level and senior civil service executives can choose to retire on their own terms and on their own timelines.**
• Prepare yourself to carry on after leaving the government, not as a matter of oath but as matter of a citizen's duty. One of my most important achievements came twelve years after I retired, when the Supreme Court ruled against a lender's claim of immunity from lawsuits, a potentially far-reaching decision that may rescue thousands of borrowers from the clutches of predatory lenders.
My advice to civil servants is to hang tough. Don't be pushed around. Be guided by your oath. Your country needs you now more than ever.
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*I contacted OSC on the advice of my Ethics Office. OSC took months to reply, then said it would not deal with "de minimus" cases. Shortly thereafter, the GAO report came out suggesting billions of dollars were at stake. So much for "de minimus" and OSC.
**My own experience did not involve any attempt to force me out, so I cannot write with any authority on that. I was asked repeatedly to stay, but retired when I felt the time was right.
