New Rule: Even the Appearance of a Conflict of Interest Should Be Avoided for Government Employees

Today, the Office of Government Ethics (OGE) finalized a rule governing the solicitation and acceptance of gifts to government employees from outside sources. The new rule is intended to “advance public confidence in the integrity of Federal officials” by advising that executive branch employees should avoid accepting gifts that create an appearance that their integrity or ability to act impartially is compromised.

OGE Director, Walter M. Shaub, Jr., commented to POGO that “this new regulation preserves the enforceable gifts rules but pushes employees to reach further by articulating a values-based standard for rejecting otherwise permissible gifts.”

Although the rule is non-binding, this effort is a great step forward. For years, the Project On Government Oversight (POGO) has argued that just because something is legal doesn’t mean it is acceptable, especially in the ethics area. We have witnessed cases involving the revolving door, cozy connections at Federally Funded Research and Development Centers, and ways corporations infiltrate Congress, all of which are considered legal but may sometimes lead to actual and apparent conflicts of interest.

The new rule attempts to fix the problem by establishing the “floor for ethical behavior” and a “values-based ethical culture” when it comes to gifts from outside parties. Simply stated, government employees now have a way to assess whether they should accept a gift or not. The rule establishes “considerations for declining otherwise permissible gifts,” including if their integrity or impartiality could be questioned, if the gift has a high market value, if the timing creates the appearance that the donor is seeking to influence an official action, and if the gift provides the donor with significantly disproportionate access. The interim rule was published in November 2015, and will go into effect on January 1, 2017.

OGE’s efforts are extremely helpful in pointing out that legal doesn’t always mean appropriate, and it’s good that this values-based approach has been expanded to all executive branch employees; federal contracting regulations have done it for years:

Government business shall be conducted in a manner above reproach and, except as authorized by statute or regulation, with complete impartiality and with preferential treatment for none. Transactions relating to the expenditure of public funds require the highest degree of public trust and an impeccable standard of conduct. The general rule is to avoid strictly any conflict of interest or even the appearance of a conflict of interest in Government-contractor relationships. While many Federal laws and regulations place restrictions on the actions of Government personnel, their official conduct must, in addition, be such that they would have no reluctance to make a full public disclosure of their actions. [Emphasis added.]

At a time when actual and apparent conflicts of interests are hourly fodder for the newspapers and the internet, POGO is glad to see that OGE has taken a proactive approach to restoring government integrity.