To judge whether the government is acting ethically and to hold unethical actors accountable, the government must preserve meaningful ethics records and make timely ethics disclosures.
It should be easy for the public to understand whether officials are acting ethically. Unfortunately, under existing ethics rules, a tremendous amount of ethically questionable conduct occurs under the radar because disclosures are complicated, opaque, or untimely. From federal procurement and contracting to the core missions of federal agencies, the public is right to doubt that the public interest is paramount in decision-making, or that experts within agencies are heard over the din of special interests with access. Disclosure rules and forms must allow the public to scrutinize officials’ financial interests and ensure they are prioritizing the public interest instead of personal gain. Any disclosures must be searchable, sortable, downloadable and machine readable. Unless data is explicitly prohibited from being made public by law, the disclosures should include all data fields available.
- Adopt a proactive and robust approach to ethics disclosures.
The administration should embrace the importance of disclosures as a vehicle for building public trust by committing to extensive and proactive disclosures of ethics-related information. These disclosures can be required as part of a broader executive order on ethics and/or implemented by the White House Presidential Personnel Office and Office of Personnel Management. At minimum, mandatory disclosures should include:
- Requiring cabinet secretaries and non-career deputy secretaries to release tax returns in addition to filing required Office of Government Ethics forms;
- Requiring agencies and the White House to proactively submit to Congress and the Office of Government Ethics the outcomes of requests for ethics recusals, screening arrangements, and waivers/exemptions (whether under statutory, regulatory, or executive order rules)1;
- Requiring any official operating under an ethics waiver or exemption to proactively disclose to Congress and the Office Government Ethics contacts with individuals and entities covered by the waiver;
- Requiring all nominees to positions to disclose if they have been substantially aided in the nominations process by any individual with a financial interest before the agency to which the nominee is nominated.
- The president’s executive order should prohibit the appointment of any person who received a “golden parachute” from their employer.
Any special bonus or financial award given by an employer to an employee specifically because of appointment to a senior government position should disqualify that person from appointment. The golden parachute rule should not apply to bonuses or awards that would normally be given regardless of public service.
1 The next administration should take a broad, values-driven approach to what documentation is subject to mandatory, proactive disclosure. Among the obvious candidates for disclosure are: any signed ethics pledges pursuant to Executive Order; any ethics pledge waivers pursuant to Executive Order; any waivers under 18 U.S.C. § 208; any authorizations under 5 CFR § 2635.502; any waivers under 5 CFR § 2635.503; any certificates of divestiture and requests for certificates of divestiture; any financial disclosure reports; any ethics training records; any authorizations to accept gifts of free attendance at widely attended gatherings; any STOCK Act notices of employment negotiations (limited to employment for which the government employee was hired); any disciplinary actions and reprimands related to ethics violations; and any documents demonstrating compliance with ethics agreements.