The Myth of Ethics Regulations


Live, on national television, Kellyanne Conway violated Title 5 › Chapter XVI › Subchapter B › Part 2635 › Subpart G › Section 2635.702, which states in part:

“An employee shall not use his public office for his own private gain, for the endorsement of any product, service or enterprise, or for the private gain of friends, relatives, or persons with whom the employee is affiliated in a nongovernmental capacity, including nonprofit organizations of which the employee is an officer or member, and persons with whom the employee has or seeks employment or business relations.”

So now what? If like me you thought this might be the beginning of the end for Kellyanne, think again. First of all, and perhaps most significantly, as citizens, we have been specifically barred from a direct role in demanding enforcement of the rule. Section 106 of the same Federal Regulation states in the relevant part, “A violation of this part or of supplemental agency regulations, as such, does not create any right or benefit, substantive or procedural, enforceable at law by any person against the United States, its agencies, its officers or employees, or any other person.”

In another part, the law stipulates that “It is the responsibility of the employing agency to initiate appropriate disciplinary or corrective action in individual cases.” Good luck with that plan. The White House has already sent the message that the matter is closed and that Kellyanne has been “counseled”, and since the regulation stipulated that either corrective OR disciplinary action is called for, we can be certain that no further action will come from the White House. However, the White House is not the only entity that can respond to this clear violation by Conway.

This explains why the website for the Office of Government Ethics crashed and their phones were swamped yesterday. The law provides that Director of the OGE may order corrective action. So, if you think that corrective action is all that is needed, you still have the option to hold your breath and wait for that to happen. There is some reason to be hopeful for some action on that front since, Walter Shaub, the current Director, and an Obama appointee, still has another year to serve. However, if like millions of others you were expecting disciplinary action in response to this flagrant violation, you are out of luck, because while the Director can order corrective action, the rule only empowers him to recommend disciplinary action. If you think the Donald will act on that recommendation, you may want to consider having a guardian appointed to keep you from harming yourself physically.

So…your government intentionally promulgated an ethics rule that is effectively useless. Kellyanne will surely skate away un-phased, and the Trump administration will discover that they are free of legal constraints. I guess it is up to Donald to exercise some level or moral restraint. Clearly, when it comes to issues of government ethics, the White House is ungovernable. Is it time to the citizenry to adopt a similar strategy? Has the time come for the American people to embrace the concept of ungovernability? What would our founding fathers recommend?

The Declaration of Independence: …Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government.

Thomas Jefferson: I hold it, that a little rebellion, now and then, is a good thing, and as necessary in the political world as storms in the physical.

Resist! Persist!

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