Reflections on the Office of Government Ethics Annual Conference

It really is a question of culture - - -

I was honored to have been invited to make a presentation on behalf of the Rutgers Center for Government Compliance and Ethics (Center) at the annual Office of Government Ethics (OGE) Conference in mid September 2011.  The theme of the conference was:  “Organizational Integrity is a Shared Responsibility.” 

Having been a Designated Agency Ethics Officer (DAEO) for the FBI some years ago, I have a fair understanding of the government wide ethics program including the underlying statute, the OGE regulations, and the relationship between the OGE and the various agencies, bureaus, etc.  So when I thought in terms of the conference theme of ”Organizational Integrity as a Shared Responsibility,” I viewed that concept as reflecting the cumulative effect of agency employees carrying out their agency responsibilities in compliance with the Employee Standards of Conduct.   In discussions with participants and sponsors at the conference, I came away with the belief that while my initial thoughts were correct, there is also an effort to move beyond a focus on individual conduct to affecting the ethical culture in government organizations.  Of course that effort begs the question of how do we go about doing that.

The first step in providing an initial suggestion is to look to the private sector. A high level comparison of government and private sector ethics programs, reveals the primary distinction between the two to be the general absence of the use of the compliance program methodology as part of the government ethics regimen.[1]  I believe this to be generally true at all levels of government.  Yes, there are exceptions[2], especially where the government directs an enterprise that is very similar to the private sector - for example, hospitals.  

This is an important distinction because compliance programs, while initially constructed as a defensive measure, do more than mitigate criminal penalties.  They send a message to the employees that the organization will act with integrity and accomplish its business ends in compliance with the letter and spirit of the law.  With credibility established through a self-initiated program to assure compliance with the law, it is a short leap to require employees to follow the lead of the agency and act in accordance with the Employee Standards of Conduct.

 What is key is that proper compliance program implementation goes beyond mere exhortation to uphold the law or reliance on the government employees to comply with the law. These programs are visible and require participation by agency employees at all levels.  Employees will see an organization, albeit small, headed by an executive level compliance officer with direct access to the highest levels within the organization.  When a proper compliance program is implemented there will be visible buy-in and participation in the program by all members of the senior staff.  Active participation in the program will be an element in the process of appraising performance.  There will be communications and training of all employees regarding their roles and responsibilities and their ability to raise compliance concerns and be protected in doing so through a non-retaliation policy. There will be structured efforts on the part of people with mission responsibilities to identify compliance weaknesses and to fix them.  All these activities will take place under the umbrella of the “Compliance Program.” 

 While such a program could be kept separate and apart from the government ethics program they are most often combined in the private sector – under the rubric of the “Compliance and Ethics” program.  Employees will know that their agency is acting with integrity by meeting  the minimum expectation of the citizens it serves -  compliance with the law as it carries out its business.  

Joe Murphy, Chairman, RCGCE Advisory Group, recently observed: “It seems to me that any organization that employs human beings faces compliance and ethics risks, and should use the management techniques that are part of an effective compliance and ethics program to address those risks.  We have certainly seen plenty of proof of this in the government context, and it makes sense for the government to use the same types of management tools that other organizations use to prevent and detect misconduct. “

Affecting the culture of any organization will take time and may take several different approaches over time.  Implementing a compliance program seems to me to be a “low hanging fruit” solution that will have an immediate impact on the individual behaviors by leading through organizational example.

Emil Moschella,
Executive Director
Rutgers Center for Government Compliance and Ethics
emoschella@rcgce.camlaw.edu

 


[1] The corporate adoption of a compliance program methodology was spurred when the Federal Sentencing Commission issued the Federal Sentencing Guidelines for Organizations in 1991.  The message of the Guidelines to all organizations is that if you want to mitigate your exposure to criminal liability, the organization needs a process in place to prevent and detect violations of law.

[2] The Department of Justice, Office of the Inspector General (OIG) conducted a review of the FBI’s Integrity and Compliance program which is an adaptation of private sector compliance methodology into that agency. In a report dated November 2011 it made suggestions for improvement but added “that other agencies may wish to consider implementing a similar kind of program.”