Introduction
A centralized office for government ethics policy is crucial to a conflict-free and accountable civil service. The U.S. Office of Government Ethics (OGE) was established by the Ethics in Government Act of 1978 “to prevent and resolve conflicts of interest” for Executive branch employees. However, the OGE Director does not have a statutory notification requirement for removal like Inspectors General (IG), which requires that the President notify Congress when an IG is removed from their position—affording a level of protection from undue influence. Furthermore, the OGE Director does not have the additional guarantee of independence generated by for-cause removal protections, which limits when an official may be removed from their job (e.g., removal only for inefficiency, neglect of duty, or malfeasance in office).
This lack of insulation may inhibit the OGE Director from preventing conflicts of interest or preclude an objective ruling on ethics issues for fear of reprisal. As noted by the Campaign Legal Center, a legislative solution is needed to address this gap in oversight protection. Congress should provide for-cause removal protections and a notification requirement to insulate the OGE Director against presidential and political interference.
The Role of the U.S. Office of Government Ethics
When contemplating government ethics oversight and accountability, investigations and enforcement actions come to mind first. However, prevention is another critical component of ethical government administration that, as OGE put it, ensures agencies are not “crippled by scandal.” OGE fulfills this preventive oversight role by providing education, guidance, monitoring, and rulings on Executive branch ethics issues. Under 5 U.S.C. § 13122, OGE’s statutory mission is one of prevention: “[t]he Director shall provide . . . overall direction . . . related to preventing conflicts of interest.” The Department of Justice and agency officials are responsible for enforcement, while the Offices of Inspector General conduct investigations into allegations of ethics violations.
OGE’s role as a compliance monitor mandates that OGE review financial disclosure statements, interpret ethics rules, issue advisory opinions, and order corrective action when required. The formal advisory opinion is an essential OGE tool. OGE exercises its authority to issue advisory opinions by publishing legal advisories, program management advisories, job aids, and other similar publications. Through these opinions and other work products, OGE provides “consistent interpretation and application of ethics laws and regulations across the executive branch.”
However, OGE’s mandate often requires the Director to advise on some of the most sensitive personnel issues, which may cause “undue pressure” on the office.
The Lack of OGE Director Protection
Unlike some other oversight entities, which have various protections to ensure independence, the OGE Director lacks procedural or substantive protections to ensure objectivity. If a presidentially appointed Inspector General is removed or transferred from office, under 5 U.S.C. § 403(b), the President must “communicate in writing the reasons for any such removal or transfer to both Houses of Congress, not later than 30 days before the removal or transfer.” The head of the Office of Special Counsel (OSC) enjoys a higher level of objectivity and independence than Inspector Generals because that position has for-cause removal protections. The OSC enabling statute, 5 U.S.C. § 1211, states that the President may remove the Special Counsel (the head of OSC) “only for inefficiency, neglect of duty, or malfeasance in office.” These organic statutes ensure that Inspectors General and the head of OSC enjoy procedural and substantive protections to guarantee independence.
The OGE Director’s lack of protections exposes the office to political pressure and risks its objectivity and independence. The OGE authorizing statutes do not provide for any notification requirements or for-cause removal protections for the Director. Since there are no procedural prerequisites or limitations on the grounds for removal, the President may remove the OGE Director for any reason at any time.
The Senate reported on this lack of insulation from political pressure in 1983 when considering the reauthorization of the Ethics in Government Act of 1978. This report found that OGE must “rule on sensitive issues involving political appointees . . . [and] it is crucial that the Director act independently and free from political pressure . . . . Unless the Director is insulated . . . [they] could be forced to compromise on what action the official must take.” As the Senate report indicates, safeguarding OGE Director independence has been a subject of debate almost since the passage of the Ethics in Government Act.
The 1983 for-cause provisions were stripped when resolving differences between the House and Senate bills. Still, a renewed interest in OGE insulation continues with recent legislation such as the Executive Branch Comprehensive Ethics Enforcement Act of 2019.
Legislative Solutions
Congress must establish for-cause removal protections for the OGE Director or, at a minimum, provide procedural notification requirements to prevent retaliatory behavior. Congress created OGE as an oversight entity to monitor, prevent, and resolve conflicts of interest within the Executive branch. However, OGE is only effective when it “can act objectively and without fear of reprisal.” Therefore, Congress must provide substantive and procedural requirements for removing the OGE Director.
The notification requirements of the Inspector General Act and the OSC enabling statute’s for-cause removal provision provide model language for the OGE Director’s protections. A proposal to combine both of these provisions and amend 5 U.S.C. § 13121(b) by inserting the following language provides the strongest independence protections:
The Director of the Office of Government Ethics may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.
If the Director is removed from office or is transferred to another position, the President shall communicate in writing the reasons for any such removal or transfer to both Houses of Congress, not later than 30 days before the removal or transfer.
If enacted, this model language would prevent the President from removing the OGE Director for personal animosity or other trivial reasons. Only a serious abuse of office would warrant removal. The required notification would also document why the Director was removed and allow Congress to amend the Director’s protections if necessary.
The proposed language above is essential to ensuring an independent OGE and Director. Providing the OGE Director with procedural and substantive removal requirements ensures that OGE is free from political pressure to issue objective opinions on ethical conflicts. Stronger removal protections will significantly assist OGE in its mission of preventing conflicts and the erosion of the public’s trust in government.
Conclusion
The Office of Government Ethics and its Director are pivotal in ensuring Executive Branch employees do not abuse their position for private gain. However, the Director, who is charged with overall compliance monitoring and policy, is potentially subject to partisan tensions and political pressure. The fear of reprisal and political pressure must be eliminated to empower OGE and its Director with true independence and objectivity. Congress can ensure OGE’s independence by implementing the proposed legislative language above. For-cause protections and removal notifications create an institutional check that can guarantee Executive branch employees remain conflict-free and above ethical reproach.