Today, the United States government at the federal (national) level has a highly developed structure of laws and regulations designed to prevent, detect and remedy conduct by government agencies and officials that is not in the public interest. The overarching purpose of this legal framework is to promote institutional integrity as well as the personal integrity of each federal employee. In this essay, Jane S. Ley, deputy director for government relations and special projects, U.S. Office of Government Ethics, explores the major components of the system and how it has evolved over time.

Many of the basic components of the legal framework supporting government integrity in the United States arose from events involving great national tension -- our Revolutionary and Civil Wars, and presidential assassinations and resignations. Refinements of the basic components have historically occurred and will likely continue to occur in response to scandals and political crises.

The bedrock foundation of all U.S. federal government self-regulation is the U.S. Constitution. In the late 18th century, after the Revolutionary War, the drafters of the Constitution were greatly influenced by their perception that the European systems of government with which they were most familiar were corrupt. The Founders felt that concentrating too much power in the hands of any one governing body was dangerous. The United States Constitution begins with the phrase "We the People..." signifying from the very outset that the U.S. government is established by and for the people and must be accountable to its citizens. That is why government employees are often referred to in the United States as "public servants" and, when acting on behalf of the collective will, as "public trustees."

The U.S. Constitution separates the federal government into three distinct branches (judicial, legislative and executive) with a system of "checks and balances" among their powers. It also allows for the retention of significant powers by the states within a federal system. While this diffusion of power may be inefficient in some ways, the Founders felt strongly that this was the best way to ensure that "We the People" would not be subjected to a single tyrannical power within the government nor would the government be dominated by a small tyrannical group of the people serving their own special interests.

Institutional Integrity

Overlaying this constitutional separation of powers are laws and regulations that impose general procedural requirements on all agencies and courts of the government to ensure that government actions are conducted in a fair and consistent manner and in the light of the public eye. This consistency and transparency of public processes is a key component of systems designed to promote government integrity.

For example, during the middle half of the 20th century, Congress enacted a series of laws -- including the Administrative Procedures Act and the Government in the Sunshine Act -- that require agencies to follow standard procedures for administrative activities such as rulemaking and enforcement of regulations and to conduct those activities in a public forum. Congress also enacted a Freedom of Information Act that allows broad public access to government records and information. Agency processes not carried out in accordance with standard written procedures or not carried out in the proper public forum may be challenged by the public in the federal courts. In addition, all civil and criminal litigation in the federal courts must follow standardized published rules.

Finally, through a series of statutes, the government also developed a standardized, competitive, public system for issuing government contracts. And, more generally, it has standards and procedures for spending government money appropriated by the Congress. An arm of the Congress, the General Accounting Office, can audit and evaluate agency programs to help ensure that government monies are being spent and accounted for in a proper fashion.

Individual Integrity

The activities of any government, however, are carried out by individuals. Thus employee qualifications and conduct also have been an evolving area of regulation. Early in U.S. history, holding a government job was based upon a so-called "spoils" system, and individual conduct in that job was not closely controlled. As each president was elected, he brought with him individuals who had supported his election and who then expected to be given government jobs. Individuals with influence in a new president's administration would sell their ability to secure jobs for others for a percentage of their salary, and those willing to pay did so expecting to "reimburse" themselves in other ways from the public treasury. Jobs in particular demand were those that allowed the holder to collect funds from the public. Integrity or competence was not of primary importance in the selection of these employees. For example, in the 1830s Samuel Swartwout was appointed Collector of the Port of New York. During his first term, Port funds were found to be $210,000 short, but having supported the next winning presidential candidate, Swartwout was reappointed. During that term he disappeared to Europe with over $1,250,000 of government money. A tidy sum today, but an enormous portion of the entire federal treasury in the early 19th century.

This grossly corrupted federal service became a national scandal. Reform efforts began but were unsuccessful in raising sufficient public indignation to force a significant change. Ultimately, the assassination of President James Garfield in 1881 by an individual who felt the president owed him a specific job was the catalyst for this reform. The public made its demand for reform during the congressional elections in 1882. In 1883, the new Congress enacted the first comprehensive civil service law -- the Pendleton Act -- that established an examination for fitness and competency, promotions on the basis of merit and a fair system of job and pay classification requirements for civil service. The systems administered today by the U.S. Office of Personnel Management (OPM) and the Merit Systems Protection Board are based upon that foundation and now include standard administrative procedures for addressing incompetence and misconduct. A merit-based civil service paid a fair and adequate salary is now accepted without question at the U.S. federal level as a key component in any successful program designed to protect against corruption.

Political Activities of Employees

Restrictions limiting the political activities of government employees also began to be enacted during the mid-20th century. These restrictions are popularly referred to by the name given to the first such comprehensive law, the Hatch Act. These restrictions have a two-fold purpose: to protect employees from requests from office seekers for assistance in their elections and to protect the public from having government employees use the authority and resources of their offices to help particular candidates. Initial prohibitions were quite restrictive; more recent amendments to the Hatch Act allow for some personal participation in political activities by most employees. The Hatch Act, however, continues to prohibit activities such as using official authority or influence to interfere with an election; soliciting or accepting political contributions on behalf of a candidate; engaging in political activity while on duty, on federal premises or in a government uniform; or soliciting or discouraging the political activity of any person who has business before the employee's agency. Currently, this law is enforced by a small agency within the executive branch, the United States Office of Special Counsel (OSC), and the penalty for violating the law is removal from service or, under certain circumstances, a suspension without pay for not less than 30 days.

Whistleblower Protection

The Office of Special Counsel is also responsible for the 1989 Whistleblower Protection Act, a newer component of the government integrity framework. The term "whistleblower" refers to a person within an organization who reveals wrongdoing to the public or to those in positions of authority. Under this law, OSC provides a secure channel through which an employee may provide evidence of a violation of any law, rule or regulation, gross mismanagement, gross waste of funds, abuse of authority or substantial and specific danger to public health and safety without fear of retaliation and without disclosure of the employee's identity, unless that employee has consented. OSC's authority also extends to protecting whistleblowers from retaliation because they have made these protected disclosures.

Conflicts of Interest and Ethics

The personal conflicts of interest and "ethics" of government officers and employees were for more than a century and a half dealt with almost exclusively by criminal statutes and proceedings. The offer and acceptance by public officials of bribes was an early prohibition. As particular scandals arose, additional activities became prohibited. Early scandals involved officials making unfounded claims against the government treasury or personally profiting during the Civil War from contracts for goods that never arrived or were defective (thus causing additional deaths and casualties). These scandals gave rise to a series of criminal laws designed to prohibit government officials from personally profiting by their involvement in government decisions and processes. The basic prohibitions of these statutes remain today.

In the early 1960s, renewed interest in public service as a respected profession, generated in part by the election rhetoric of President John F. Kennedy, began to shift the emphasis from simply criminal prohibitions to more aspirational standards. First, however, the federal criminal statutes were redrafted to use common terms and were codified in a single location in the laws of the United States. The Kennedy administration also began a project of establishing an administrative (non-criminal) code of conduct for executive branch officials that addressed not only actual conflicts of interest but activities that gave rise to the appearance of such conflicts. This new approach was based on a belief that the public's trust in the government was damaged whenever it appeared that a conflict of interest had occurred. Thus the administrative code encompassed a far broader range of activities than that prohibited by the criminal code.

In 1965, President Lyndon Johnson, continuing the project after Kennedy's death, issued Executive Order 11222 setting forth six basic principles of conduct for public service. That Executive Order expressly stated that an employee should avoid any action that might result in, or create the appearance of (1) using public office for private gain; (2) giving preferential treatment to any organization or person; (3) impeding government efficiency or economy; (4) losing complete independence or impartiality of action; (5) making a government decision outside official channels; or (6) affecting adversely the confidence of the public in the integrity of the government.

Violations of these standards would result not in imprisonment or fine, but in administrative sanctions such as reprimand, suspension or dismissal. Thus, expectations for official conduct were set much higher, and the principles, while enforceable, also had an aspirational dimension.

In the mid 1970s, the activities associated with the impending impeachment and resignation of President Richard Nixon severely undermined the public's confidence in its leaders. In part, the congressional response was to create internal agency "watchdogs" known as "inspectors general." In part, an inspector general provides independent and objective audits of programs and operations of the agency in, or to, which he or she is appointed; makes recommendations on policies for activities designed to promote economy, efficiency and effectiveness of that agency's programs and operations; and prevents and detects fraud and abuse in such programs and operations. However, there was also a recognition that the mere enforcement of laws governing institutional and employee conduct were not enough. Preventative measures were also necessary. In 1978, at the same time the Inspector General Act was passed, Congress passed the Ethics in Government Act that created the Office of Government Ethics (OGE). Unlike many government agencies throughout the world that are tasked with dealing with conflicts of interest and ethics, OGE was not intended to be, and is not, an enforcement agency with regard to individual conduct. Rather, OGE is responsible for a prevention program (public financial disclosure, counseling and education) and for establishing ethics policy for the entire executive branch. Investigation and enforcement are carried out by other agencies within the branch, such as the agency inspectors general and the Department of Justice. In this way, OGE does not perform both the roles of "counselor" and "cop."

In the legislative branch of government the Constitution makes each chamber -- the Senate or the House of Representatives -- responsible for determining the qualifications and setting the behavior standards of its own members. Each now has a specific "ethics" committee made up of its own members, and each has established its own rules of conduct that supplement the criminal statutes. These committees provide advice to their fellow members of Congress, receive complaints and, if necessary, make sanction recommendations to their respective Houses. Even though elected, a member of the House or Senate may be expelled by the rest of the members for misconduct.

The judicial branch has established codes of conduct for federal judges and other employees of the branch and has committees that provide advice with regard to those codes. It also has an established procedure for hearing complaints against federal judges. For serious misconduct, federal judges may be removed after the House of Representatives has convicted and the Senate has impeached them. Impeached federal judges are prosecuted by the Department of Justice for criminal violations. For less serious misconduct, other sanctions, such as private or public reprimand or a change in the assignment of cases, may be imposed.

Criminal Conflicts of Interest

In general, the criminal conflict of interest statutes prohibit officers and employees from all three branches from accepting bribes or gratuities, from acting as the representative of private individuals in matters before the government, and from sharing in a claim against the government. Executive branch officials are prohibited from acting in any government matter in which they, a spouse or child or certain types of organizations with which they have a fiduciary or employment relationship, has a financial interest. They also are prohibited from accepting from private sources payment of or a supplementation of salary as compensation for their government services. Finally, former officers and employees of the executive and legislative branches are restricted for certain periods of time after leaving government service from representing others to or before the government on certain types of matters. The criminal statutes have a maximum penalty of a $250,000 fine and/or five years in jail, but violations may also be charged as civil offenses.

Financial Disclosure

High-level government officials of all three branches are required to file financial disclosure reports that are available upon request to anyone in the world. These reports are required upon entry into federal service or when becoming a candidate for such a position, annually and at the termination of federal service. In this way, the public has an opportunity to judge whether an official may be or has been impartial, has engaged in some conflict of interest or is being truthful about his or her financial holdings and obligations. In general, these reports require the disclosure of most assets and sources of income; liabilities; gifts; fiduciary or employment positions held; continuing arrangements with former employers; purchases, sales and exchanges of certain assets; and, for first-time filers, the names of their major clients if they had been engaged in providing services for a fee prior to government employment. Mid-level government officials in the executive branch file a more limited financial disclosure report with their employing agencies that is not disclosed to the public.

Financial disclosure by federal officers and employees provides the government with one of its best prevention tools. Reviewing the reports provides the government with an opportunity to anticipate potential conflicts between the employee's financial interests and activities and his or her duties. Agencies can then change the duties of employees or counsel them with regard to the measures that must be taken in order to avoid actual conflicts. Such actions can include recusal [abstaining from decisions involving possible conflict of interest], divestiture, resignation from private positions or employment or the establishment of a blind trust. Of course, the reports can also be used for enforcement purposes if information on the report discloses a violation of some statute or if the individual filer is found to have filed a false report. The U.S. financial disclosure system, however, is not designed to detect illicit enrichment; it does not require disclosure of net worth.

Codes of Conduct

The range of activities covered by all three branches' codes of conduct can include restrictions on the acceptance and solicitation of gifts from sources outside the government as well as from other employees; employment and other activities outside the government; conflicting financial interests; partiality in performing official duties; seeking other employment; and misuse of position (i.e., using public office for private gain, misuse of nonpublic information, misuse of government property and misuse of official time.) The executive branch code of conduct governs all career and political appointees in the branch. To the extent that the standards are not the same, the code is more stringent for the highest levels of employees. Penalties in the executive branch for violating these standards range from reprimand to dismissal, and when a career civil servant is involved, those sanctions must be carried out using the standard civil service administrative procedures.

Conclusion

Beginning with the Constitution itself, the United States has developed an interdependent system of laws and regulations that promote and require integrity and ethics. This system is designed to promote institutional integrity through the establishment of consistent, fair and public procedures for carrying out the business of government and to promote individual employee integrity through the establishment of fair, consistent and enforceable standards of ethical conduct. It is a system that has evolved over time and must and will need to continue to adapt to new challenges, such as the changing role and scope of government itself and the effect and sometimes stress of new technologies on government processes.

Back to top | Issues of Democracy, August 2000 | Other IIP E-Journals | IIP Home