Sort Out Conscience from Crime

very career executive who works for political appointees faces this problem in a variety of permutations. The administration's goals for a particular program often conflict with the experience of the career executive, who has "been there and done that." All of us are required to make decisions, large and small, on a daily basis about whom we owe our allegiance to. When it becomes a direct conflict between personal conscience, your concept of right or wrong and "going with the flow," it is time to decide whether to stay and fight or resign and get out.

Many highly principled people become whistleblowers if they believe a program will not work. But often they believe there is only one way to accomplish a particular goal. On the other hand, political appointees often come to government with a different view and shorter-term objective: Accomplish what the administration desires and then get on to the next career move or problem.

If the clear options are to violate the criminal law or cooperate, a career executive is required to notify the inspector general or senior officials if a criminal law is being violated or there is gross fraud, waste or abuse in a program. But in most situations, as in this one, the line is not so clearly drawn.

Johnson has experience and knowledge from his prior career service that is leading him to wonder whether a federal program run by the private sector, with government coinsurance, might not result in a financial debacle. His boss, on the other hand, believes the objective is to implement the administration and Congress' directive.

We should break the program down into two elements. The first is to implement the objective of letting the private sector run what previously was a government program, and the second, to structure the program to ensure integrity and projected savings.

This is far from a clear-cut issue of fraud, waste or abuse, and does not present a violation of criminal law. Johnson should continue to implement the program, which has clear administration and congressional support, while ensuring that the structure of the program will prevent inept or dishonest financial institutions from looting it.

Johnson should start by distinguishing the two issues in his boss's mind. He can do this by getting the program up and running, while encouraging his boss, one item at a time, to provide a structure that will prevent potential fraud. That way he is not standing in the way of his boss's program implementation, but he is safeguarding the taxpayers' money.

That is the easy answer to the more difficult question: When should a career executive make a clear break with his political superior and seek to block a program because he believes it is in violation of criminal law?

In this situation, the career executive might first meet privately with the agency ethics official and an attorney from the general counsel's office. If these three people conclude that the possibility of a criminal act exists, then the executive must report that activity or program to the agency's inspector general. This is one way the executive can guard against making allegations that do not, despite his belief, have criminal implications.

A moral issue arises when an employee does not agree with a policy the new political superior is trying to carry out. Suppose, for example, the executive is asked to draft or implement regulations that would diminish the quality of the food available for school lunch programs. Even though this might be legal, the employee may morally believe he cannot do what will result in inadequate nutrition for children. But, unless it is clearly a criminal act, the employee has a policy dispute rather than a legal dispute.

If an employee's moral standards do not allow him to participate in the program, he should resign. One way might be to consult with his boss, the personnel office or the Executive Resources Board and request a reassignment to another position.

I have counseled federal career executives who, upon a change of administration, believed they could no longer work in the government and carry out the new administration's objectives. Some resigned. Ultimately, we must live with ourselves, and we must not violate our personal conscience or our moral standards.

Situations in which an employee believes an illegality exists or faces a moral dilemma are rare. But situations such as Johnson's, in which an employee is faced with what experience tells him will be a bad outcome, are common. In the former, the answer is more clear-cut. In the latter, the employee should respectfully work within the system to establish sufficient safeguards to protect the citizens' tax dollars and the integrity of governmental processes. Then Johnson should go home and get a good night's sleep, knowing he did his best. As the old saying goes: "The enemy of 'good' is often 'better.' "

G. Jerry Shaw, founding partner in the law firm of Shaw, Bransford & O'Rourke, represented the Office of Chief Counsel at the IRS for more than 10 years. His legal experience includes lobbying, government contracts, EEO, labor and employment law, legislative drafting and administrative law matters. He helped found and was the first president of the Senior Executives Association, for which he is general counsel and lobbyist.