This post is in the interest of holding all Administrations to account for the same set of ethics and conflict of interest rules. First I’ll tell a story.
Once upon a time I worked for the Forest Service. Part of my job was working on a project with a State. It turned out that my boss’s boss decided to apply for a job with the very same State. It also turned out that due to my project, I happened to be in meetings where various applicants were discussed. In retrospect (attention current employees!) my teasing this individual via text about their prospects while I was in these meetings was not a good idea, although quite fun at the time. He did not recuse himself from working on this project. This seemed like a problem to me of ethics, so I brought it to one of the next level above me (below this individual). She told me that other governments don’t count when it comes to conflict of interest. This struck me as questionable since the State and the Feds do not always have the same interest. Other things were going on, so I didn’t pursue it until much later, when, as I recall, the USDA Ethics folks told me that this individual should have recused themselves, but it was too late to do anything.
So what is the point of this story? The point is that long-term, knowledgeable career folks may not be up on all the details of ethics. It’s one of those (many) topics which make total sense to you when you take the training, but sometime in your career you develop questions, and the online training or write-ups on the internet don’t help, you need an expert. Who can be hard to reach, and since you don’t know them, they could get you in trouble.
But actually there are two topics here. The first is “do we all understand what the rules are” and the second is “are these rules actually enforced?”. This is important right now because career feds have one set of rules (actually I think SES folks have different rules than the rest of us) and political appointees have another set of rules. Especially politicals are of interest, but SES and other folks may well be coming and going, applying for jobs or entering the federal workforce.
The most obvious example of this in terms of politicals is the Director of the BLM. From E&E News:
Tracy Stone-Manning’s planned exit as director of the Bureau of Land Management next year highlights the looming change in public land policies coming as President-elect Donald Trump takes office.
The Wilderness Society announced Tuesday that Stone-Manning will take over as president of the prominent conservation group starting Feb. 24. The organization touted the move as a natural fit after Stone-Manning’s tenure at BLM, where she has prioritized renewable energy development and making conservation a greater priority on BLM land, along with grazing, oil and gas drilling, and recreation.
Now for me, it’s hard to imagine anything that BLM does that TWS isn’t involved with. Is Tracy recusing herself from everything? How would we know? There would have to be some kind of whistleblower, and a press who is interested in these kinds of problems with a D Admin. And they would both (whistleblower and press) have to understand the rules.
From the outside, the problem appears similar for incoming political appointees. Chris Wright has been nominated to be Secretary of Energy. He’s pretty much said how he feels about things. From Doomberg here.
Things get even more promising when one studies Wright’s policy positions on energy. In early 2024, Liberty Energy published a 180-page policy document titled “Bettering Human Lives,” and we are hard-pressed to find anything to disagree with. The ten “Key Takeaways” from the summary page read as follows:
1. Energy is essential to life and the world needs more of it!
2. The modern world today is powered by and made of hydrocarbons.
3. Hydrocarbons are essential to improving the wealth, health, and life opportunities for the less energized seven billion people who aspire to be among the world’s lucky one billion.
4. Hydrocarbons supply more than 80% of global energy and thousands of critical materials and products.
5. The American Shale Revolution transformed energy markets, energy security, and geopolitics.
6. Global demand for oil, natural gas, and coal are all at record levels and rising – no energy transition has begun.
7. Modern alternatives, like solar and wind, provide only a part of electricity demand and do not replace the most critical uses of hydrocarbons. Energy-dense, reliable nuclear could be more impactful.
8. Making energy more expensive or unreliable compromises people, national security, and the environment.
9. Climate change is a global challenge but is far from the world’s greatest threat to human life.
10. Zero Energy Poverty by 2050 is a superior goal compared to Net Zero 2050.
Wright appears to be a fan of “all of the above.” Is that conflict of interest or not- as far as I know he is the CEO of an energy company and is also invested in nuclear? It seems like much of our “conflict of interest” thinking is based on salaries or stock options. That’s fine as it goes, but as we have seen with Covid origins, there are other factors like disciplinary hegemony, or professional rear-end covering, that can also lead to conflicts of interest. Or even, as we have seen in 20th century history, purely ideological motives can lead to the most horrendous outcomes.
Time for a C.S. Lewis quote:
Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.
So here’s the way I see it. Tracy and Chris have their own earnestly held views. They are hired by organizations that support their views, when they are not working for government, promoting their previously and futurely held views.
Some readers of TSW have been political appointees so they know what the rules are. Do these rules seem to work? Are they even enforced? I’m thinking no one would necessarily risk speaking out during a person’s employment, and no one is watching post-employment. Even though the ethics rules are different for politicals, SES, and ordinary employees, do we think that they are working in practice?
To circle back, I think that applying for jobs outside your current government job should lead you to recuse yourself from involvement in related projects. Because that can be an obvious COI between a) what the applied-to entity wants, b) your career goals, and c) the good of your current employer. And it comes down to specific projects to me, rather than an inclination, which political appointees (and in fact, all of us) have. TWS litigates project X, person from TWS comes into government and gets involved in project X. No. Or Energy Company supports project X and person from Energy Company comes in and gets involved. It seems they should both be “no”, but if no one is watching? And I think the “no gifts and monetary bribes” is a good thing, but is enforcement dependent on whistleblowers?
What do you think? Please link to any documents about federal employee, SES or political COI and ethics requirements.
As a former career SES who is now in private industry, I was required to have a conversation with the USDA Office of Ethics before I left and was provided a letter of my restrictions. (I was actually required to notify the Office of Ethics when I was initially approached about the job and had to recuse myself from that point on any matters having to do with my prospective employer). My employer asked for that letter before I received a final offer.
It is pretty complicated (it is law after all) but basically, I was not allowed to have ANY contact with anyone in the Executive or Judicial Branches of government for one year (personal friendships excluded). I was not allowed to represent an entity before the USDA on any matter completed or pending while I was at USDA for the second year. I am restricted from representing an entity FOREVER on most anything I was involved in while at USDA. However, I was able to provide “behind the curtain” guidance during those two years without any restrictions.
The key to the Ethics issue once you are outside the government is WHO you are representing and to WHOM. Generally, TSM can’t represent the Wilderness Society for at least one year before anyone in the Executive or Judicial Branches. Can’t be in a meeting, on the phone, cc’d in an email. NO mention of her name by the Wilderness Society for one year for most situations (obviously there are some exceptions).
In general, Executives and SES have much stricter restrictions than GS. If you are a GS employee leaving to work for a company that wants to do business with the government or influence it, I highly recommend you reach out to Ethics before you leave just to be safe. And if you had anything to do with contracting decisions (whether on an evaluation team, contracting officer or program manager), be sure to ask them about the Procurement Integrity Act restrictions you may be under!
As for how this is monitored-we all know that federal employees are moral to a fault, so there shouldn’t be any issues, right? But, when necessary, Hotline reports to OIG or employees who report contact to their leadership are the most likely methods for enforcement. (For me, it is the fear of jailtime!) There will be an investigation, possible fines and even jail time depending on the situation. There simply isn’t any other way for Ethics to monitor all of the former employees without a little help from current employees. During my time at USDA, I had a few reports from my staff of contact by prior SES/political appointees and I took the appropriate actions.
The USDA Office of Ethics has some great information on all of this at https://www.usda.gov/about-usda/general-information/staff-offices/office-ethics/rules-road
https://www.usda.gov/about-usda/general-information/staff-offices/office-ethics/training-resources
There is even “an app for that”!
Here are some basic references:
Post-Employment Representation Prohibitions: 18 USC § 207
The Post-Employment Restrictions Limit Communications and Representations Before the Executive Branch and the Federal Judiciary.
One Year Restriction on Communications by Senior Officials –
18 U.S.C. § 207(c)
Permanent or “Lifetime” Prohibition on Representations Concerning Party Matters – 18 USC § 207(a)(1)
Two Year “Official Responsibility” Restriction – 18 USC § 207(a)(2)
18 U.S.C. Section 207(b) and 207(f): Additional Legal Restrictions Which Include Prohibitions for Representing Foreign Entities and Concerning Foreign Trade Agreements and Treaties.
Tracy Stone-Manning is too slippery to be caught.