Appearances Outweigh Good Intentions
his case study, with its artful appeal to man's noblest trust in his fellow man, clouds the fact with feeling and knowledge with belief, risking the cold analysis it deserves.
Grimm and Arnold are indisputably close friends, but a fresh element arose when Arnold's employer, Walker-Reese, acquired a support contractor serving Grimm's agency. At that moment W-R became a prohibited source of gifts for every agency employee, raising the question of whether this situation meets the exception for gifts given "under circumstances that make it clear that the gift is motivated by a personal friendship rather than the position of the employee." The test: How would these circumstances look to a reasonable person?
Certainly the friendship is long and genuine and may indeed have prompted the offer. On the other hand, the gift will be worth hundreds of dollars. It will be paid for by
W-R, not Arnold. Grimm will be rubbing shoulders with all the W-R executives. Arnold's corporate duties may involve cultivating business, and Grimm has become a division director who may have a say in awarding future contracts to W-R and in its fee on the current one. Grimm may totally trust his old friend and believe that the staccato sequence of luncheon, corporate acquisition and hunting invitation is nothing but random chance, but that isn't a circumstance to be factored into the equation. Grimm is a sitting duck if he doesn't visit his ethics adviser at once.
If I were that ethics adviser, I would conclude that a reasonable person would be hard-pressed to discount all those business circumstances and conclude that nothing but friendship motivated the gift. Grimm would turn red and grow indignant, and I would remind him that the friendship exception is there to permit pre-existing friendships to continue, not to promote them at corporate expense. He and Arnold are every bit as free today as when they were GS-9s to vacation and eat and hunt together as long as it's on Grimm's personal credit card. If they perpetuated their friendship in that fashion, I doubt the agency's modest W-R support contract would have such a financial impact on Arnold that it would require Grimm's recusal.
Conversely, if I were to give Grimm the go-ahead to accept this gift, attend the hunting party and bend elbows with the W-R elite, then he should probably recuse himself from participating in future W-R matters. Or he should work on them only if approved under the procedures for addressing appearances of loss of impartiality. That might affect his career at the agency, but it's a cost of maintaining public confidence in the integrity of government. And in all likelihood, the dollar value of this gift would also oblige Grimm to list it on his next financial disclosure form.
Finally, Grimm would turn pale and grow quiet, and I would urge him to consider his leadership role in the agency. Each day his subordinates study his conduct for clues about acceptable government behavior--the length of his lunch, the length of his hair, the length of his personal calls. Rather than risk confirming the suspicion that government officials squeeze everything they can from their positions, might it not set a finer, more enduring example to take the high road?
Harvey Wilcox was the U.S. Navy's deputy general counsel for 18 years-its senior career lawyer and arbiter of its thorniest ethics cases. He occasionally interrupts his retirement in Charlottesville, Va., to write and lecture.