History of the Legalization of Executive Branch Ethics Regulation: Implications for the Management of Public Integrity

Abstract

From the early 1960s through today, the federal executive branch has seen a significant expansion of an ethics management program designed to protect citizen confidence in the impartiality and objectivity of government decision-making. The program has placed a heavy emphasis on regulating financial conflicts of interest. Instead of protecting confidence in government decision-making, the program has actually lowered ethical expectations for federal employees and officials. The public and the media now largely view ethics as a process of complying with legalistic ethics rules and regulations. At the same time, critics of "petty ethics rules" argue that the legalization of public service ethics has made it much more difficult to recruit individuals to serve in government. This article deals with the failure of government ethics rules to maintain confidence in government, along with the criticism that ethics rules make it difficult to recruit and retain government personnel, by arguing for (a) the removal of criminal penalties for conflict-of-interest violations, (b) the adoption of a new ex parte contact-disclosure requirement for high-level federal officials, and (c) the shifting of responsibility for whistleblower protection from the Office of Special Counsel to the Office of Government Ethics. If adopted, these measures will help to refocus the primary purpose of the ethics program of protecting public confidence in government decision-making without imposing an undue burden on the recruitment and retention of personnel. They will, as well, make it clear that government ethics involves much more than complying with rules and regulations.