Stay or go? Ethical public service to elected leadership

*The statements and views expressed in this article are entirely Mr. Orlowicz’s own, and do not represent the views of the Railroad Retirement Board or the United States Government.

 

As government lawyers and public servants, we and the agencies we work for are all ultimately accountable to some form of elected leadership. If we do not work for an agency with an elected official directly at its head, our agency heads are likely to be appointed by the executive or otherwise selected by someone who is elected and accountable to the public through elections. One of the basic principles of the nonpartisan federal civil service is that federal employees maintain high standards of integrity, conduct, and concern for the public interest.1 Similarly, the State of Illinois Code of Personal Conduct provides that state employees hold positions of public trust and have a responsibility to the people of Illinois to act with integrity.2 Ordinarily, carrying out that public trust and serving the public interest mean following and implementing the policies and priorities of the elected and appointed officials who run our organizations. But what happens when the way we are directed to carry out our duties seems inconsistent with the public trust and public interest we are charged with maintaining?

As lawyers, we may face this type of dilemma more frequently or more acutely than other government employees. Many of us are more deeply involved in planning or executing policy in our workplaces than the average agency employee. We may become associated with a policy or program as we implement it or suggest modifications to it, and we may be the representative of the agency in court defending the legality of the program or policy. Nevertheless, as civil servants, we rarely make final decisions about which policies to pursue and how best to pursue the public interest. Additionally, as lawyers we always have to consider the Rules of Professional Conduct, as well as any ethics rules or prohibitions applicable to government employees more generally. In some extreme instances, a government lawyer may feel compelled to resign or depart government service because of a conflict of this nature.

Walter Shaub, former director of the U.S. Office of Government Ethics, has publicly suggested a mental checklist of the following three questions as a framework to evaluate how and when a government employee can continue performing official duties when the employee and the elected leadership hold different principles:3

• Can you accomplish your mission effectively?

• Can you perform your work ethically/morally?

• Can you speak the truth?4

This article intends to expand upon the basic principles of these three questions and address some possible considerations in formulating answers in the context of government lawyers generally, without attempting to draw specific conclusions about any particular agency or circumstance.

Can you accomplish your mission effectively?

Whether or not a government agency adopts a formal mission statement or has explanatory language in its enabling statute, agencies are created for a purpose and to accomplish specific missions. Some agencies may have multiple missions, or shift from one mission to another over time. The first question presented here is whether the government lawyer, acting within the scope of authority granted to her or him, can accomplish the assigned mission effectively. Implicit in the question is a recognition that elected leadership has the power and prerogative to define the mission and the means by which the mission should be pursued. In some cases, that definition may be provided by the legislature, with limited discretion for the executive. In other instances, the executive may have broad discretion in implementing statutory directions. In either instance, the government lawyer is charged with accomplishing the mission given by elected or appointed leaders.

There are many possible causes for an inability or failure to accomplish the mission effectively. Lack of funding, training, or resources can be a major cause for failing to accomplish the mission effectively. As an example, a 2014 report by the American Bar Association and RubinBrown LLP found the number of hours public defenders in the Missouri Public Defender System were able to spend on each case fell short of ABA minimal standards for adequate representation.5 Since that report was issued, some public defenders in Missouri have begun declining new cases.6 Missions that are not clearly defined are more difficult to accomplish effectively, especially when actors within the agency or outside of it evaluate the agency’s activities based on a different mission definition than the definition given to the government lawyer. In some cases, micromanagement or unnecessary interference with work performed by agency staff may decrease effectiveness, while in other cases, lack of guidance or instruction may be the primary culprit.

Also implicit in this question is whether the government lawyer has taken reasonable measures available to him or her to correct or alleviate the causes of ineffectiveness. If the cause is lack of resources, as in the Missouri example above, attempting to reduce workload and improve effectiveness by declining new cases is one possible option. Only if reasonable efforts have been tried and failed, or are unavailable in the first place, should the government lawyer feel it necessary to resign or leave the agency.

Can you perform your work ethically/morally?

Although answering any of these questions requires some subjective judgment on the part of the government lawyer, this second question may be the most open to reasonable disagreement. Performing work effectively can often be measurable or subject to standards in a way that ethical or moral conduct may not. Similarly, individual concepts of morality may vary more widely than concepts of effectiveness of mission. Nevertheless, the scope of this question is not unbounded nor free of definition and context.

As an initial point, government lawyers are bound by the Rules of Professional Conduct for their state of licensure, just as any other lawyer is.7 Federal law also provides that Department of Justice attorneys are subject to state and local rules in any state in which the attorney performs official duties, to the same extent as lawyers in that state.8 But performing your work ethically and morally must mean something beyond merely staying within the bounds of the law and the Rules of Professional Conduct. Many lawyers pursue public service exactly to seek work with a higher sense of purpose and responsibility, to work on behalf of the people as a whole, rather than private clients.

With that in mind, it may be helpful to think of this question as a way of asking, “Can you sleep comfortably at night?” Different individuals in different circumstances will of course have different answers for that question. If elected leadership tolerates or encourages acts that an individual attorney views as unethical or improper, some factors to consider might be how serious the ethical breach is, how personally involved the attorney is, and how much the breach affects the rest of the attorney’s work. Unethical conduct by office leadership that affects a single case or situation may be easier to justify or forgive than a continuing pattern or practice. For example, if an attorney was concerned about particular decisions made regarding executive clemency in Illinois, that attorney’s work is more likely to be negatively affected if the attorney directly advises Prisoner Review Board members on recommendations for clemency than if the attorney processes FOIA requests for the Board.9

The amount of discretion built into the lawyer’s role (or the elected leadership’s role) may also play a significant part. A county State’s Attorney has an enormous amount of discretion when deciding which cases to prosecute, but he or she may choose not to delegate that discretion to subordinates. At the federal level, the discretion available to individual United States Attorneys for many types of administrative decisions is limited by the Attorney General through the U.S. Attorneys’ Manual10 and other guidance documents. At other agencies, such as the Social Security Administration, payment or non-payment of benefits to a category of beneficiaries such as incarcerated individuals may be prohibited by statute,11 thereby leaving no discretion in the hands of the agency. In the author’s view, decisions which are exercises of discretion will generally have heavier moral or ethical implications than decisions which are mandated by law, but this is a point on which reasonable readers may disagree.

Can you speak the truth?

Finally, the third question addresses the ability to be honest in our work. Formulation and implementation of public policy requires reliable and truthful information to function effectively. Otherwise, the likelihood of public policy achieving its stated goals efficiently or accurately informing the public of the effects of public policy is impaired.12 Much like the second question, the requirements of the law and the Rules of Professional Conduct must be merely a starting place. It may be helpful to look at our responsibilities to speak the truth in both an internal context (speaking to our coworkers, supervisors, and agency heads) and an external context (speaking to other agencies, courts, and the public).

Internally, candor and honesty allow the agency’s work to be thoroughly vetted before it is exposed to outside criticism. In preparing for an appellate argument, for example, many of us may engage in a moot argument to allow our colleagues to help identify weak points in the agency’s brief and strategize the best response. Both the federal13 and Illinois Freedom of Information Acts14 recognize the importance of honest opinions and recommendations by providing a “deliberative process” exception to public disclosure requirements. These functions tend to break down when leaders imply by word or action that they only want positive feedback, or information supporting only one side of a debated issue. An attorney who asks his questioners at a moot argument to only ask friendly questions is missing the point of the exercise.

The importance of internal honesty can be seen in a variety of formal rules designed to protect employees from adverse consequences when they speak with candor. For example, federal ethics regulations protect employees from disciplinary action if the employee seeks ethics advice from an agency ethics official, discloses all relevant circumstances to the ethics official in seeking the advice, and acts on the ethics official’s advice in good faith.15 This rule encourages both honesty and proactive disclosure by employees. Similarly, federal Inspectors General are required to keep the identity of complaining employees confidential under most circumstances.16 Of course, the existence of these formal rules (and the difficulties faced by watchdog agencies more generally) also demonstrates that candor and honesty are not always valued highly in government service.

Externally, the obligation of candor and honesty has different contours; information, recommendations, and analyses that are shared openly and freely within an agency may be protected from public disclosure, or outright prohibited. Nevertheless, an agency attorney has an obligation not to make material misrepresentations when speaking on behalf of the agency.17 Agency attorneys also have an obligation to act consistent with agency policy when speaking in their official capacity. When agency management is hostile toward being truthful to the public or other outside sources, it may create tension between these obligations.

Conclusion

As in most matters of conscience, broad rules and guidance can only go so far. One of the chief virtues of Mr. Shaub’s three questions may in fact be their open-ended nature and simplicity of the structure; if this is so, the expansion and discussion above may obfuscate more than clarify the core dilemma. Nor are these three questions the only possible approach to evaluating one’s ability to continue in public service. Ideally, elected leadership and career civil service work as interlocking gears, each with different functions but working toward the same overall goal and the efforts of one complementing the other. When that ideal is not achieved, we each have an individual responsibility toward the public we serve to act in a manner consistent with our standards for integrity and our obligations to elected leadership and to the public, in order to bring the components back into harmony with each other. Regardless of how we reach our decisions, the choice to stay and continue the work, or to depart public service and pursue other routes, will almost always be a difficult one.

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About Mr. Orlowicz: General Attorney, United States Railroad Retirement Board, Office of General Counsel.

 

1. 5 U.S.C. §2301(b)(4).

2. State of Illinois Code of Personal Conduct, effective July 1, 2016.

3. Lydia Polgreen, Four Quitters Walk Into a Bar…, Huffington Post Highline, Oct. 25, 2017, http://highline.huffingtonpost.com/articles/en/trump-quitters/ . See also https://twitter.com/waltshaub/status/901050534114807809 .

4. I thank Mr. Shaub for his permission to adopt and discuss his questions.

5. American Bar Association Standing Committee on Legal Aid and Indigent Defendants, The Missouri Project: A Study of the Missouri Public Defender System and Attorney Workload Standards (June 2014).

6. Dan Margolis, Many Missouri Public Defenders Decline New Cases After State Supreme Court Disciplines Lawyer, St. Louis Public Radio, Oct. 6, 2017, available at http://news.stlpublicradio.org/post/many-missouri-public-defenders-decline-new-cases-after-state-supreme-court-disciplines-lawyer#stream/0 ).

7. See Rule 1.11, Comment [1], Illinois Rules of Professional Conduct of 2010.

8. 28 U.S.C. § 530B; 28 CFR Part 77.

9. https://www.illinois.gov/prb/Pages/default.aspx

10. https://www.justice.gov/usam/united-states-attorneys-manual

11. 42 U.S.C. § 402(x).

12. See generally Orin S. Kerr, A Theory of Law, 16 Green Bag 2d 111 (2012).

13. 5 U.S.C. § 552(b)(5).

14. 5 Ill. Comp. Stat. 140/7(1)(f).

15. 5 CFR §2635.107(b).

16. Inspector General Act of 1978, 5 U.S.C. app. 3, § 7(b).

17. Rule 4.1, Illinois Rules of Professional Conduct of 2010.

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December 2017Volume 19Number 2PDF icon PDF version (for best printing)