Ethical Government

[Jonathan Buhacoff]

Proposal:

To build and maintain trust in government, all elected, appointed, and hired government employees in all branches of government must have rules for ethical conduct.

Foundational principles of ethical conduct include:

* No using office for private gain; this includes self-dealing and using non-public information to further any private interests for self, family, friends, associates, or anyone else
* Disclose and avoid conflict of interest
* No personal gifts or perks from the public
* No violating rights or laws or regulations

Discussion:

No using office for private gain is an important principle of ethical government. One of the ways this would be enforced, but not the only way, is through divestment, the requirement to not have any business or investment interests while in office and for a brief period thereafter.

For the purposes of this discussion, a “gift” is any item or service or information provided that is not available to the public under the same terms. For example, a business would be allowed to provide a 10% discount for all government employees (a class perk), but not for a specific government employee (a personal gift).

The United States Department of Justice has 14 General Principles of Ethical Conduct that are similar to these foundational principles. However, we need to go further. Accepting gifts should not be allowed at all, not just from someone who might have business with the agency. The reason is that a gift might happen first and then the person might have business with the agency later, and the gift already happened. This might be difficult to predict for the government employee but the outside influence has an information advantage in that they can predict their plans might bring them to interact with a certain government agency and they might start preparing for that by finding opportunities to socialize with its employees and prepare them for influence. It’s better to not accept any gifts from the public at any time. Government agencies can host their own employee recognition programs and social gatherings.

The legislature must ensure the constitution requires all elected and appointed officials in all branches of government, and all government employees including soldiers, to follow ethical standards set by the legislature. The legislature can enact laws to set and amend those standards.

Executive Branch

Whenever the recipient of benefits or penalties or the subject of a law enforcement action is related to the official, or is associated with the official, or was a plaintiff or defendant against the official in a lawsuit, the official must disclose this and seek out independent review of the pending action by a colleague of equal or higher rank, or delegate the action completely (with all required authority) to a colleague of equal or lower rank, or both.

Legislative Branch

Legislators must be prohibited from enacting their own benefits. Instead, for the purposes of determining benefits the legislators must be viewed as government employees and receive the same benefits as any other employees of the same level of government.

In the United States, currently members of the Senate and House of Representatives view themselves as a federal body but their pay and benefits should instead come from their home states and be the same as any other state employee. This means that the state legislature sets the pay and benefits for the state’s representatives to the federal government, which avoids the self-dealing that currently happens when the Congress sets their own pay and benefits. Similarly, a state’s legislature is comprised of representatives from each of the voting districts and therefore the pay and benefits of those legislatures should be set by the local governments they represent. Local government employees such as mayors and city councils should have their pay and benefits approved by local referendum to avoid self-dealing.

Judicial Branch

Whenever the plaintiffs or defendants in a case are related to the judge, or are associated with the judge such as by membership in a social club or business, or were plaintiffs or defendants against the judge personally in a lawsuit, the judge must disclose this and recuse to allow another judge to try the case. If a judge fails to disclose the conflict of interest, either party may seek to declare a mistrial and seek a different judge for trial (this would be an exception to any double jeopardy rule because the defendant is not in jeopardy a second time for the same cause, it’s the same jeopardy under improved circumstances of an impartial judge).

Investigative Branch

Whenever the subject of an investigation is related to the agent, or is associated with the agent such as membership in a social club or business operation, or was a plaintiff or defendant against the agent in a lawsuit, the agent must disclose this and seek out independent review of the pending action by a colleague of equal or higher rank, or delegate the investigation completely (with all required authority) to a colleague of equal or lower rank, or both.

When politicians are investigated for unethical or illegal or criminal activity, they sometimes declare that the investigation is politically motivated. Although the purpose of having a separate and independent Investigative Branch is to reduce the motivation for unethical investigations and to develop a professional and impartial investigative capability, it’s still possible that an agent acts alone or in conspiracy with other agents to unethically investigate someone for a corrupt purpose such as political sabotage, business advantage, or personal vendetta. For this reason, if an allegation of unethical investigation is raised, the investigation must be supervised by agents of equal or higher rank to ensure that all applicable laws and regulations and investigative procedures are followed.

The Investigative Branch has some discretion over which cases to pursue. The top elected official of the Investigative Branch sets a policy for which investigations to pursue and in what priority, which the agents then apply to individual cases. A news story about scandalous behavior or outcry from the public is sufficient to initiate an investigation. Investigations into the conduct of elected and appointed officials should be prioritized due to their position of public trust.

Allegations of politically motivated investigations, then, should not slow anything down — the agent in charge of the investigation simply seeks supervision from an agent of higher rank and proceeds as usual. However, if the supervisor suspects that the allegation may be true and the investigation is unethical, the supervisor may initiate a separate investigation into the investigation itself and if there is evidence the agent acted unethically then the agent must face consequences which may include separation. The agent has the same rights as others when being investigated so if the agent believes the meta-investigation itself is political (such as to disrupt a legitimate investigation in order to protect a political ally) the agent may allege the same and supervision is provided by the next higher ranking official with a review by the top elected official of the Investigative Branch who, being recently elected by the people, is the ultimate authority in the Investigative Branch to determine whether an investigation is or isn’t politically motivated. A dispute with this decision would have to go to the Judicial Branch in the form of a lawsuit.

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