Introduction to Government Ethics

  • Robert Rizzi (Holland & Knight LLP)
  • Charles E. Borden

Over the past 50 years, since the Watergate scandal, ethics-related scandals have led to a substantial overhaul of federal ethics laws, with the result that government employees are now subject to more stringent ethical regulatory restrictions than ever before.  At the same time, growing media scrutiny has made the reputational consequences to individuals and companies caught up in ethics scandals significant, even in cases in which no legal violation is ultimately established.

Recent events have challenged many of our assumptions about government ethics. These issues have been highlighted by current scandals in Washington.  Providing effective legal counsel to clients requires an appreciation of both the legal and non-legal dimensions of ethics-related representations

1 Chapter 1 Themes and Structure of the Course 1 Chapter 1 Themes and Structure of the Course

Outline of the Course

This course has four modules

  • “Building blocks” of government ethics, including history, themes, players, statutory, regulatory and enforcement framework
  • Rules that apply when entering government service
  • Rules that apply while in government service
  • Rules that apply after leaving government service

Course has descriptive and normative elements

  • Descriptive: what is the law of government ethics
  • Normative: what should we regulate and how should we do so

The scope and nature of government ethics regulation is now an “open” issue. Recent events show that many issues in the field are not settled.

1.1 The Two-Masters Problem 1.1 The Two-Masters Problem

The Two-Masters Problem

  • A basic component of all government ethics is that a government official must serve only “the public interest” (whatever that may mean)
  • The "Two Masters" problem focuses on this basic rule. The problem derives from Scripture: “No man can serve two masters: for either he will hate the one, and love the other; or else he will hold to the one, and despise the other. Ye cannot serve God and mammon.” Matthew 6: 24 (KJV)
  • “Plato provides an example in his work on Ancient Greece, The Republic [of] . . . the lives of the governing officials and rulers. The government gave them homes, food, and a living allowance. However, they were not given any salary and were forbidden from participating in any activities outside of government.” Jeff Green, “History of Conflicts Law,” 26 Hamline L. Rev. 555 (2003)

1.2 Scandal and Reform 1.2 Scandal and Reform

  • The Story of Government Ethics is the History of Reactions: Scandal & Reform Dynamic 
    • Evolution directly traceable to prior scandals in peace and war
    • Are ethics rules a one-way ratchet?
  • Can we reverse ethics regulation if we determine a regulation does not work? (had thought no, at least legally)
  • Legacy Issues -- Ethics rules enacted to deal with a particular scandal in the past can create unexpected problems or issues going forward
    • Why can’t we anticipate all ethics problems (scandals)?
  • Problem of “weaponized ethics”
    • Does risk of “politicization” of ethics affect how ethics laws are enforced?  Should it? 

1.3 Relationship Between Government “Ethics” and Moral Conduct 1.3 Relationship Between Government “Ethics” and Moral Conduct

Math v. Church

  • Former WH Counsel: Government ethics “has really nothing to do with ethics or morality as one might learn it in church. It is more like math.”

      AB Culvahouse, in Mackenzie, “Scandal Proof” p. 68.

  • In truth, government ethics regulation has elements of both “church” and “math”
    • Violation of ethical “norms” has moral connotations
  • For example, the charge “that’s unethical” is not a purely legal judgment for most

"Morality cannot be legislated, but behavior can be regulated." ― Martin Luther King Jr.

1.4 Financial Conflicts of Interest 1.4 Financial Conflicts of Interest

  • Scandals that involve financial conflicts of interest are the dominant focus of government ethics regulation
    • Why are these “conflict of interest” scandals seen as more damaging to public trust in government than other types? Why focus on money?
    • What about ideological or “principled” conflicts of interest?
    • What about other conflicts (e.g., “deep state”)?
  • The “Franchise” – a defining concept in many scandals
    • Teapot Dome Scandal
  • Military Procurement Scandals
    • Boeing Tanker Scandal, Operation Ill Wind
  • Form-driven process (ineveitable when the focus is on financial conflicts)