November 30, 2011
NPR Story on Office of Special Counsel
National Public Radio has a positive story available about the turnaround at the Office of Special Counsel. Here's an excerpt:
If [new Special Counsel Carolyn] Lerner keeps up her recent pace, the office may not remain secret for much longer. She went public earlier this month with a report critical of personnel decisions by the Air Force. Lerner raised questions about whether the Air Force had inadequately disciplined managers at the mortuary at Dover Air Force Base, where three whistle-blowers reported that remains of dead American service members had been mishandled.
"Because we're independent, we really can be an objective source for reviewing what the agency's internal investigations uncover and pointing out problems with those investigations," Lerner says. "If there are still questions that remain, we can raise them."
Debra Katz, a Washington employment lawyer who's followed the office for decades, took note.
"By taking the position that she did, and making it clear she was not going to be a wallflower or someone who could just be walked over, but she would go toe-to-toe with the Air Force, she sent a very strong message that whistle-blowers would be protected," Katz says.
November 29, 2011
Why Doing the Ethical Thing Isn’t Automatic
A recent New York Times article contains a fascinating survey of academic studies on whistleblower psychology. One section describes a phenomenon that is highly relevant to federal sector training:
Research also shows that it is much easier to step over the boundary from ethical to unethical when there is a gradual erosion of moral values and principles rather than one big leap.
A 2009 article in The Journal of Experimental Social Psychology, also co-written by Professor Gino, used as an example an accounting firm that has an excellent relationship with a client company. The accounting firm, which receives tens of millions of dollars in fees from the client, approves the company’s high-quality and ethical financial statements.
For three years, everything is fine. But suddenly, in the fourth year, the company stretches and even breaks the limits of the law.
Another case? Same accounting firm, same client. This time, after the first good year, the client bit by bit pushes the ethical envelope over the next three years.
The accounting firm would be more likely to approve the financial statements in the second case than in the first, the article says.
One of the reasons, Professor Gino and her colleague write, is that “unethical acts can become an integral part of the day-to-day activities to such an extent that individuals may be unable to see the inappropriateness of their behaviors.”
We have prepared a couple of Microsoft PowerPoint slides based on the Journal of Experimental Psychology article referenced that may be useful to trainers who would like to include a short component on the dangers of gradual erosion of ethical standards:
These slides have a stark appearance because they don't include any graphics templates. This is to make it less likely they will conflict with any graphics templates that you have already chosen for your presentation
November 28, 2011
Public-Private Partnership (P3) Presentation Materials (Part 2)
As promised, here are the materials shared by the Department of State and USAID from the recent presentation.
- State's creating an MOU chart Download Creating-MOU chart (State)
- State's how to identify partners Download Idenitfying partners (State)
- State's chart on the P3 life-cyle Download Ppp-life-cycle
- State's Guidelines for Partnership Download State Guidelines for Partnership
- USAID's Partnership Best Practices Download Partnership Due Diligence - Best Practices (USAID)
MSPB Report on Barriers to Federal Employees Making Disclosures
GovLoop has an article about a new report issued by the U.S. Merit Systems Protection Board (MSPB), titled Blowing the Whistle: Barriers to Federal Employees Making Disclosures.
An Office of Special Counsel press release noted:
According to the report, approximately one‐third of the individuals who believed they had been identified as a source of a report of wrongdoing perceived either threats or acts of reprisal, or both. In addition, the report found an increase in the percentage of employees aware of waste caused by a badly managed program and a significant increase in the number of employees who observed acts of wrongdoing that would cost more than $100,000. Lerner said, “With the government facing a fiscal crisis, OSC’s role to protect whistleblowers has never been more important.”
ICE Ethics Attorney vacancy (GS 15)
DHS' Bureau of Immigration and Customs Enforcement has an opening for a GS 15 ethics attorney. Vacancy Announcement: OPLA-Ethics-563313-WJ. Closes: Dec. 6, 2011. See full vacancy announcement at http://www.usajobs.gov/GetJob/ViewDetails/303083100.
November 27, 2011
Mortuary Investigation Another Encouraging Sign From Office of Special Counsel
“The OSC seems to be getting more aggressive and confident in shining a public light on agency failings,” POGO Director of Investigations Nick Schwellenbach said. “We’ll need more time before we can say whether or not the mortuary case and some other recent actions are isolated examples or a part of a trend, but POGO has definitely seen some things it likes from OSC in recent months.”
For the whistleblowers in the Air Force mortuary case, the OSC provided an important independent review of their claims of retaliation. Unlike most agency Inspector Generals, the Air Force Inspector General and other military inspector generals are directly part of the chain of command and thus not independent.
“The Air Force was tasked by the Department of Defense to investigate the allegations, and they spent a great deal of time and a great deal of effort on it,” Ann O’Hanlon, an OSC spokesman told POGO. “But there were pieces of their investigation—which we made very public—that we didn’t think went far enough. Specifically, the disciplinary actions taken against the three men that were responsible.”
NYT's Elisabeth Bumiller reported on Wednesday that Secretary of Defense Leon Panetta is considering further actions against the officials.
The three senior officials—one of whom tried to fire two of the whistleblowers after becoming aware of the investigation and another who ordered that the mortuary cut a Marine’s arm off with a saw—were not dismissed by the Air Force. In fact, one received only a letter of reprimand, and the other two were demoted to jobs at Dover outside of the mortuary, according to The New York Times.
The OSC sharply criticized this decision in their report to the Secretary of the Air Force, arguing that “these managers ignored evidence given to them, presented baseless explanations that were ‘simply not credible’ and took affirmative steps to conceal the problem.”
As a result, OSC wrote, “The retention of these individuals sends an inappropriate message to the workforce.”
“I don’t know of any further action [the Air Force] has taken directly since our report came out, but there’s congressional interest now, and we hope that there will be results,” O’Hanlon said.
November 26, 2011
USA Today Editorial on Lessons from Abramoff
The USA Today Editorial Board believes that disgraced lobbyist Jack Abramoff can teach us about needed reforms. www.usatoday.com. USA Today suggests that the revolving door is still one of the major problems:
The 2007 [ethics reform] law did almost nothing to thwart one of Abramoff's most appalling tricks, which was to woo people in power by offering them lucrative lobbying jobs whenever they wanted to leave public service. In an interview with 60 Minutes this month, Abramoff said that once he dangled a job, not only did he get what he wanted, but congressional offices would call him to suggest additional favors they could do.
Under current law, House members and senior staffers must wait one year after leaving their jobs on Capitol Hill before they can lobby their former colleagues. That was not changed in the 2007 law. For senators and their staffers, the "cooling-off" period was increased from one to two years.
Neither of these prohibitions seems sufficiently long, and neither has sufficient teeth. In both cases, the ban is only on making personal contact with key people on Capitol Hill, so a former member or staffer can instantly take a senior position at a lobbying firm or trade association where he or she directs strategy.
November 25, 2011
Possible Effects of New DFARS Requirement for DoD Contractors
Thanks to an esteemed former IEC member for alerting us to a new DFARS regulation. Effective as of November 18, 2011, the new rule requires DoD contractors to represent when they submit their bid that all “covered DoD officials” who will work on the contract are presently in compliance with their post-Government employment restrictions including 18 U.S.C. 207 and the Procurement Integrity Act. Our well-informed source points out that this may result in more requests from contractors for more specific ethics opinions from agency ethics officials regarding specific matters that departing DoD personnel have been involved with.
November 21, 2011
December 1st Meeting: Travel Regulations Update
At our December 1st meeting we are pleased to once again have Lenny Loewentritt, of GSA, who will provide us an update on developments in the travel world. Lenny's presentations are always highly informative and extremely well attended, so plan to be with us on the 1st. In the meantime, we wish everyone a very happy Thanksgiving!
We will meet at the U. S. Access Board, at 1331 F Street, N.W. (on the north side of F Street, between 13th and 14th Streets, near the Metro Center station) from 12:15 - 1:30. As always, individuals who are on the IEC roster need not pre-register for this meeeting. Ethics officials who are not on the roster but who wish to pre-register can do so by contacting firstname.lastname@example.org not later than Monday, November 28th. Those who are neither on the roster nor pre-registered will still be admitted by showing a Government ID upon arrival at the building.
November 20, 2011
Early Holiday Dismissals
With Thanksgiving approaching, it may be worth reviewing a GAO decision that discusses the propriety of allowing employees to leave work early. A 2006 Army Lawyer article discussed the issue in depth.
November 17, 2011
The removal appeal of the employee implicated in US v. POGO is remanded
Consequences of United States v. Project on Government Oversight, 525 F.Supp.2d, 161, 164 (D.D.C. 2007). The Dept. of Interior employee, Robert Berman received notice of his proposed removal for misuse of public office for personal gain. The Federal Circuit suspended its review of the case pending the outcome of the DC Circuit case on whether he violated 18 USC 209 by accepting an award from POGO. Since that case was remanded for a new jury verdict, so was the personnel removal case.
See Berman v. Department of the Interior, C.A.F.C. No. 2010-3052 (nonprecedential) (Nov. 7, 2011) at http://www.cafc.uscourts.gov/images/stories/opinions-orders/10-3052.pdf.
Read related article at: http://www.fedsmith.com/articles/articles_display.php?a=3183&p=1
"Financial Conflicts of Interest In and Out of Government" by Kathleen Clark
Several people have requested information related to Kathleen Clark's presentation at the September 2011 OGE Conference. The article she wrote is published as "Financial Conflicts of Interest In and Out of Government" in the Washington University in St. Louis Legal Studies Research Paper No. 11-02-03. See http://law.wustl.edu/faculty_profiles/pages.aspx?id=223.
Ethics related news items
Please see the following news items which are related to ethics:
- Farm Credit Administration Federal Register publication of its policy statement on ethics. http://www.gpo.gov/fdsys/pkg/FR-2011-11-17/pdf/2011-29687.pdf
- Project on Goverment Oversight (POGO) articles
- Follow up article on SEC ethics problems. http://pogoblog.typepad.com/pogo/2011/11/watchdog-report-confirms-that-sec-employees-destroyed-records-and-misled-national-archives.html#tp
- Follow up article on Senior Mentors at the Dept. of Defense. See http://pogoblog.typepad.com/pogo/2011/11/98-percent-of-former-military-officers-drop-out-of-pentagon-program-after-financial-disclosure-.html
- Morning Smoke: Big Banks Promise, Repeatedly, Not to Break SEC Rules. http://pogoblog.typepad.com/pogo/2011/11/morning-smoke-big-banks-promise-repeatedly-not-to-break-sec-rules.html
November 15, 2011
Presidential Executive Order: PROMOTING EFFICIENT SPENDING
On Nov. 9, 2011, the President signed an executive order to promote efficient spending in the Executive Branch. See EO at http://www.whitehouse.gov/the-press-office/2011/11/09/executive-order-promoting-efficient-spending. The EO is part of the Campaign to Cut Waste, and coincided with the announcement of the 2011 SAVE Award finalist. See WH press release: http://www.whitehouse.gov/the-press-office/2011/11/09/we-cant-wait-president-obama-sign-executive-order-cut-waste-and-promote-.
Within 45 days, agencies must develop plans to reduce combined costs in the following areas to 20 percent below Fiscal Year 2010 levels by Fiscal Year 2013.
- Reduce Spending on Travel and Conferences.
- Cut Duplicative and Unnecessary Employee Information Technology Devices
- End Unnecessary Printing and Put It Online
- Limit Motor Vehicles
- Stop Swag – or Government Promotional Handouts
DOD IG Audit Finds US Naval Academy Wrongly Accepted over $150,000 in Gifts
An audit released Thursday, conducted by the DOD IG found that, in addition to improperly contracting for the production of recruiting films, the U.S. Naval Academy also wrongly accepted over $184,000 in gifts of wine and crystal from alumnus between 2005 and 2007 and over $300,000 in corporate sponsorship funds. The audit found that the U.S. Naval Academy Foundation acted as a conduit for the academy by receiving gifts from prohibited sources.
OGE extends comment period on proposed rule: Lobbyist gift ban for all
The Federal Register includes an extension of the comment period for the proposed amendment to 5 CFR 2635.203 which would extend the prohibition on acceptance of gifts from registered lobbyists to all Federal personnel (not just Political appointees under the Ethics Pledge). See http://www.gpo.gov/fdsys/pkg/FR-2011-11-15/pdf/2011-29569.pdf. Comments are now due NLT: December 14, 2011.
November 14, 2011
Holiday Reminder 2011
Posted by IEC Team Leader | Permalink
November 09, 2011
Follow-up On Converting YouTube Video Question
We received a highly relevant follow-up question to our November 2 post Finding YouTube Videos for Ethics Training Use and Converting Format:
Question: Can the "media converter" website be used on the NMCI (Navy & Marine Corps computer system)?
Answer: I have found the automated filtering used by federal IT shops maddeningly inconsistent and illogical. For example, my current agency blocks access to the U.S. Army school for lawyers. This is bizarre, since it is a federal government website. Further, the Army produces some of the very best federal law treatises around, available at no cost.
The IT staff here would probably lift the ban on this website if I explained it to them, but frankly, I don't have time to waste dealing with bureaucratic hassles. It's easier to use the Army website only from a computer outside this agency.
Another classic example: For a long time, some not-so-swift IT staff at one of the largest federal agencies even blocked IEC Journal! This was despite complaints by many ethics personnel in that agency that they needed IEC Journal to do their jobs.
The automated screening is arbitrary and capricious. My hunch is Media Converter may not be included in most of the databases of "suspicious" sites that federal agencies use, but the only way to know is to try it out from your agency.
If you are with one of the agencies with weak IT staffs who block useful sites, you can either explain the error to them, or access Media Converter from a non-agency computer. Either way, it is easy to use once you get access.
Posted by IEC Team Leader | Permalink
November 08, 2011
State Department Takes Hard Line Against Book Author
The Washington Post's Federal Diary column reports on the plight of Department of State whistleblower Peter Van Buren:
The memo said that by publishing articles and blog posts “on matters of official concern . . . without submitting them to the Department for review . . . your judgement in the handling of protected information is questionable.”
State’s memo did not identify the objectionable blog item, but Van Buren said it was “a link, not a leak, a link from my blog to a WikiLeaks document that was already on the Internet.”
The fact that the document was available to everyone in the world did not matter.
“I did write blog postings and online articles without permission,” Van Buren admits. But he understandably questions whether his punishment is in line with the little or no harm done by linking to a document that was readily available anyway.
November 07, 2011
DoD Accepts Office of Special Counsel Whistleblower Recommendation
A press release at the OSC website described a positive solution to a case of whistleblower retaliation:
In an April 2010 report to then‐Defense Secretary Robert Gates, OSC recommended full corrective action for Ms. Le and disciplinary action against officials responsible for the whistleblower retaliation and other prohibited personnel practices. DCAA Director Patrick Fitzgerald concurred and took action:
- Ms. Le’s appraisals were changed to reflect the highest levels of achievement;
- Ms. Le received retroactive performance awards and her gag order was lifted;
- Subsequently, Ms. Le received a promotion;
- The officials responsible for the retaliatory actions against Ms. Le left government service, were reassigned or were disciplined.
Special Counsel Lerner said, “I’m grateful to Diem‐Thi Le for her courage to speak out. Whistleblowers like Diem‐Thi Le put their careers on the line when they expose this kind of fraud and abuse. They make our government stronger and they save taxpayer money.”
November 06, 2011
Use of Private Aircraft by Governor
While governors are not federal officials, the issues explained in news coverage of the governor of Texas might have some value in illustrating the issues raised by federal officials' acceptance of gifts of air travel:
Mr. Perry’s travels adhere to Texas ethics laws, and he is far from alone in accepting gifts of air travel. But among politicians he stands out for taking private flights for activities that are considered part of his job as governor. That is different from campaign travel or the sort of quasi-official trips for which officeholders normally use private planes, like attending a conference or giving a speech.
“It would be unusual for an official to be flown to Washington to testify before Congress by a special interest of some kind,” said Robert M. Stern, president of the Center for Governmental Studies in Los Angeles. “Usually the state would pay for that.”
Ray Sullivan, a spokesman for Mr. Perry, defended the governor’s use of private planes, saying it was part of an effort to save tax dollars. Mr. Sullivan acknowledged “there are critiques to be made” about using state-owned versus private planes, but said “we chose to err on the side of protecting taxpayers.”
When the governor’s staff asks to use a private plane, no promises are made and no consideration is given to whether the owner has an interest in the trip, he said. “Over the years we’ve developed a good feel for supporters and other Texans who own private aircraft that we could ask to use,” Mr. Sullivan said. “The governor bases all of his decisions on his philosophy and on what he believes is best for the citizens of the state.”
November 05, 2011
Whistleblower Bill Advances in House
A key House panel on Thursday approved recently revived whistleblower protection legislation, building bipartisan momentum for expanding protections against retaliation to airport baggage handlers, national security employees and some federal contractors.
The unanimous vote by 35 members of the House Oversight and Government Reform Committee moves the bill (H.R. 3289) to other committees in an effort to close what some call "judicially created loopholes" that have limited the number of whistleblowers who win legal cases.
November 04, 2011
New Rule on Conflicts of Interest for Contractors Performing Acquistion Functions
A significant new final rule regulating personal conflicts of interest of contractor and subcontractor employees supporting or performing certain government acquisition functions was published on November 2.
Crowell & Mooring's analysis of the rule is available at their website.
Public-Private Partnership (P3) Presentation Materials
As promised, here are the relevant materials from the wonderful presentation on Public-Private Partnerships by by USAID and State Department officials.
- Power Point Presentation: Download Dept State Public Private Partnership
- Dept. of State, P3 website: http://www.state.gov/t/pm/wra/partners/
- USAID website: http://idea.usaid.gov/
- USAID fact sheet on difference between P3 and Global Development Alliances: http://idea.usaid.gov/sites/default/files/attachments/PPPs_vs_GDAs.pdf
More to come. Or if you have P3 resources to share, please email them to us.
Report on an SMU Ethics Progam
Thanks to the IEC member who tipped us off to a Dallas Observer article about "Ethical Leadership in Government," a symposium on ethics held at SMU. It was moderated by Mike Davis, a senior lecturer at SMU's Cox School of Business. The panelists were Arthur Athens, a director of the ethical leadership center at the US Naval Academy; Judy Nadler, a senior fellow at the Markkula Center for Applied Ethics at Santa Clara University; and Don Fox, the acting director and general counsel for the United States Office of Government Ethics.
Posted by IEC Team Leader | Permalink
November 03, 2011
DoD Paralegal Specialist vacancy (GS-12)
The Department of Defense (DoD) Standards of Conduct Office (SOCO) has a vacancy for a GS-12 Paralegal Specialist with specialized experience in Government Ethics and related program requirements. Vacancy Announcement: WHS-12-547835-MP. See USAJobs annoucement at: http://www.usajobs.gov/GetJob/ViewDetails/300562100. Closes: Nov. 15, 2011.
More on E-mail and Attorney Client Privilege
A Nov. 1 ABA Journal article discusses the ABA ethics opinions discussed here in a previous post. This attorney client privilege issue could come up easily in the course of working as an ethics officer.
November 02, 2011
Finding YouTube Videos for Ethics Training Use and Converting Format
YouTube and other online sources contain many videos useful for training. Audiences tend to like videos, and short videos can provide the trainer with a welcome break.
OGE maintains a YouTube "channel. PublicResource.org has converted an OGE 22 minute video entitled The Ethical Choice: Ethics for Special Government Employees, and a thorough YouTube search would probably find more OGE material. Since there is no copyright in government-produced material, anyone is free to upload it.
Clever trainers can find uses for material not prepared by OGE. One ethics office organized its annual training around videos from the popular TV show The Office, including using the "Let's Get Ethical" muscial sequence as an introduction.
Unfortuately, many training locations have poor Internet connections, or no connections accessible to the Ethics trainer. We have had good luck converting our videos with a free service called Media Converter. It's pretty easy, but pay attention to selecting the output file format, as some file formats work better on Windows computers and others work better on Macs.
November 01, 2011
OSC Director's comments on proposed legislation
- POLITICO recent article on OSC Director's comments about the need to update and revise the Hatch Act. See http://www.politico.com/news/stories/1011/67207.html#ixzz1cPUTfO9b.
- Full OSC Director's NY Times op-ed at: http://www.nytimes.com/2011/10/31/opinion/the-hatch-act-a-law-misused.html?_r=1&ref=opinion.
- Proposed legislation: http://www.osc.gov/documents/press/2011/pr11_16ha.pdf
News of Interest
The following articles may be of interest for our followers:
- Federal Computer Weekly reports on a new procurement requirement from DHS which requires that contractors working at DHS identify themselves as contractors during contract performance/agency interactions. See http://fcw.com/blogs/acquisitive-mind/2011/10/dhs-contractor-announcement-firstsource-ii.aspx?sc_lang=en. For DHS contract requirement, see H.7 of https://www.fbo.gov/download/84d/84db1bd57269bc4c9e560f8562029ede/October_28_Posting_for_FSII_-_Draft_RFP.pdf.
- Postal employee pleads guilty for stealing public funds and may face 20 in prison. See http://www.mercurynews.com/news/ci_19217889
Training Tip 17: Asking Questions: Why?
Training Tips Columns 10 through 13 dealt with answering audience questions, so let’s look at the other side. Asking questions is a powerful, yet often underutilized tool. Skilled questioning can create multipe benefits.
Qualifying the Audience
The first opportunity for questions is at the beginning of a training session. Some trainers use questions to “qualify” an audience. They ask the audience questions about their background and what they hope to get out of the session.
Ideally, the trainer will be flexible enough to take what they learn into account and customize the training on the fly. However, even if you are not that flexible, showing interest in the audience can help create a favorable impression.
Some Reasons to Ask Questions
At the simplest level, questions break the monotony. Instead of the same voice droning at the front of the room for an hour, other voices are heard, different rhythms, different timbres, different approaches.
Thoughtful questions can make audiences pay more attention to the program. They transform audience members from passive receptacles of your gems of wisdom into thinkers, at least temporarily, as they try to figure out an answer.
Sometimes questions can be a way of presenting an idea without taking complete ownership of it. The question puts the idea out there, without a formal endorsement by the trainer. For example, in Training Tip Column 7, Should You Have Handouts?, I quoted an ethics trainer who proffered this excuse for not having handouts:
"Distributing handouts would make the audience remember the presentation better, so I could not use the same material next year."
This excuse is so pernicious that it must be thoroughly discredited, but in a live training session for ethics trainers it is probably better for the instructor not to pile on. Give the audience the opportunity to explain why the excuse is so poor.
The Power of Answers from the Audience
The “highest and best use” I have found for questions is emphasizing a particularly important teaching point. In fact, I sometimes try to structure a presentation so that it will be a member of the audience—not me--who first articulates the most important idea.
This is particularly valuable when the idea is controversial or there is some reason to expect that some in the audience will be predisposed to reject it. If the instructor prepares the moment properly, when an audience member first states the idea, it will seem more persuasive. It’s not just some crazy idea the guy standing in front of the room is trying to foist on the group, it’s coming from a presumed peer in the audience.
A savvy instructor will build on this by repeating the concept and endorsing it, and perhaps the person who preferred it. Another way of reinforcing the idea is to ask the audience member to repeat or explain it. Repetition is the educator’s ally.
There are plenty of reasons why asking questions is a good idea. Next month we'll consider how to ask questions effectively.