Mark Kleiman and I wrote this in February 2017, but never had it published. I thought that it might be worth posting at this time.
Some Words of Advice for Federal Employees
Receiving directives inconsistent with good government – if not worse – creates one of the most difficult situations a civil servant can face. As former Justice Department staffers, we have some advice to offer Federal employees when such situations arise, as they seem likely to do often under the current regime.
1. When told to implement a policy that is counter to statute, regulation, or the stated and authorized goals of the agency, take good notes; such directives rarely come in writing. Then go back to your office and write down your understanding of the recommended policy, making sure you have correctly described what you were told. Then send that account as a memo to your superior.
2. Whether or not you receive a reply, follow up with a detailed list of issues and concerns, both pro and con, involved with proposed policy or action. Describe them in full context and cite the relevant legislation, executive orders, and constitutional issues. Send that, too, up the chain of command.
3. You may also be at the receiving end of threats or other problematic situations that are meant to intimidate you. Write a memo to yourself and share it with a trusted friend as soon as possible, to establish a time line.
4. Do not use your office phone or computer (or cell phone while in the office) for personal reasons, least of all to complain about these situations, as this may open you up to attack. If your agency expects you to be available for phone calls and text messages around the clock, get a cell phone that you use only for official business. You might want to use a text messaging app that encrypts the message, and ask your recipients to do the same.
5. Maintain a contemporaneous, written log on a ruled ledger with a sewn binding, so removal of any page will show. Enter every meeting, call, and significant email on successive lines in ink, leaving no spaces. Fill in any space on the right with a slash, so nothing can be added. Note the date, time, attendees, subject, and conclusions. Absent minutes, no one else will remember what happened a day later, so your record will become dispositive. This approach, laborious though it is, can provide valuable protection for anyone from a GS-1 to a cabinet officer.
6. If you decide to talk to a reporter, get the ground rules clear first. “On background” means you can’t be identified, but your agency can; “deep background” means that even your agency isn’t mentioned. Any communication to the press about official business not previously cleared by your agency’s public information office will probably put you out of bounds; consider whether you’re willing to take the consequences. If you’re later asked about whether you were the source of a story, either tell the truth (and be prepared to find a new job) or refuse to answer.
There are already reports that White House Chief Strategist Steve Bannon has taken steps to erase the paper trail behind various Executive Orders. All the more reason for career civil servants and the political appointees more loyal to the country than to the ruling cabal to make as much of a record as possible.
Michael Maltz is Emeritus Professor of Criminal Justice and of Information & Decision Sciences at the University of Illinois at Chicago. He was a research analyst with the National Institute of Law Enforcement and Criminal Justice during the Nixon administration and had to deal with some questionable directives.
Mark Kleiman was Professor of Public Policy at the New York University Marron Institute of Urban Management. He served as Director of Policy and Management Analysis for the Criminal Division in the Carter and Reagan Administrations, never receiving an improper order.