With the election of Donald Trump, our government has apparently changed the way in which financial conflicts of interest are addressed by political appointees to his administration. The President himself has, of course, been unwilling to sever ties to his businesses even as his actions in office impact their financial performance. That has raised constitutional issues for some critics and is the subject of ongoing litigation.
But for appointees to the executive branch agencies, conflicts of interest no longer seem to be a major hurdle. My colleagues and I (e.g. here, here and here) have written about this before with regard to several prominent nominees. Of course, the concern is that appointed officials in executive branch agencies will make decisions that favor their own interests now or in the near future.
There is another concern though. Suppose that a high level appointee is scrupulous about following the ethics rules and recuses themselves from any decision that might have the appearance of impacting their own interests (or those of their family and close associates). That has always been my simple understanding of the rules when I served in government or on advisory panels. And in my experience recusal works pretty well because there are always a small number of issues where it becomes necessary for any decision-maker or advisor to step away from the discussion. It happens, but is not often necessary.
I recently noted that Dr. Brenda Fitzgerald, the new head of the Centers for Disease Control and Prevention—a critical public health agency—has financial interests that are not severable related to cancer detection and opioid addiction treatment. She has recused herself from decisions concerning those issues at the CDC. But cancer and opioid use are two of the major public health crises facing our nation. Now the head of the CDC must stay out of the discussion on how to deal with these huge problems? Does that mean that the CDC will take less of a role in these battles because the director can’t participate?
Now take the nomination of Barry Myers to head my former agency, the National Oceanic and Atmospheric Administration (NOAA). As the CEO of Accuweather, which is essentially his family’s company, Mr. Myers will be affected by decisions about the National Weather Service, the National Environmental Satellite, Data and Information Service, and the Office of Oceanic and Atmospheric Research, three of the line offices of NOAA. And not for just a few isolated topics, but the broad scope of work of all of these offices has the potential to impact Accuweather’s business and finances. Since it is a family business (his brother is the founder and president), divestiture is not going to remove the appearance of a conflict of interest. So, properly, he should recuse himself from decisions that have the appearance of impacting his family. Does that mean the new head of NOAA should recuse himself from, say, two-thirds of the work of the agency? I think so, but how can that possibly work? Everyone subordinate to the NOAA Administrator will know that their work may impact him personally. So even recusal seems a weak tool.
Dr. Fitzgerald may be a good public health professional. Mr. Myers may be a good businessman. But that doesn’t mean they are appropriate choices to lead federal agencies if their conflicts of interest run so deep as to be unavoidable. This shouldn’t be the new standard for government officials, because we already have ethics laws on the books. We need Congress to step up and say no to conflicted appointees and ensure that no one is above the law.
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