A View from Inside Government: Ethics Developments Within the Department of the Interior
In late summer, the Department of the Interior's (DOI) Office of Inspector General (OIG) issued a “management advisory letter” to Secretary Sally Jewell requesting that “immediate action” be taken to address an “unreasonable and inappropriate response” by the senior leadership of the U.S. Fish and Wildlife Service (FWS) to the discipline of two FWS supervisors who engaged in “scientific misconduct” and “retaliated” against three FWS employees in 2012. The conduct at the source of this advisory is alleged reprisals against FWS employees after each made “credible allegations” of scientific integrity violations.
The three FWS employees sent reprisal complaints to the OIG in February 2012. In turn, the OIG's Associate for Whistleblower Protection (AIG-WBP) was assigned and, along with FWS, quickly concluded that after the allegations of scientific misconduct were made, FWS supervisors took “improper administrative actions” against the complainants, including loss of pay and transfer of duties. More than a year later, FWS had taken no action to reimburse the employees for loss of pay, and at least one of the complainants has not been returned to her original assignments of duty station.
Ironically, DOI has a strong scientific integrity policy. It was adopted, in part, in response to reports and investigations of political meddling at the DOI into the designation of imperiled species and habitats in 2007 and 2008. A 2008 OIG Report found 20 questionable decisions made by the FWS and named a former deputy assistant secretary at DOI as having a hand in at least 13 of them. The report also found that senior political appointees “enabled the behavior” and “aided and abetted” the tampering.
In the end, seven rulings made by FWS under the Endangered Species Act were subsequently revised, including the placement of the white-tailed prairie dog and Preble's meadow jumping mouse, a threatened mammal that lives in Wyoming and Colorado, back on the list. The then-director of the FWS called the episode a “blemish.”
In 2009, President Obama assigned to the White House Director of the Office of Science and Technology Policy (OSTP) the responsibility of ensuring the highest level of integrity in all aspects of the executive branch's involvement with scientific and technological issues, including:
- The selection of scientists and technology professionals for science and technology positions in the executive branch must be based on those individuals' scientific and technological knowledge, credentials, and experience;
- Agencies must make available to the public the scientific or technological findings or conclusions considered or relied upon in policy decisions;
- Agencies must use scientific and technological information that has been subject to well-established scientific processes such as peer review; and
- Agencies must have appropriate rules and procedures to ensure the integrity of the scientific process within the agency, including whistleblower protection.
In January 2011, DOI established its Scientific and Scholarly Integrity Policy as the first federal agency to respond to the Presidential Memorandum on Scientific Integrity. The purpose of the policy was to establish the expectations for how scientific and scholarly information considered in DOI decision making would be handled and used to ensure that decisions based on science and scholarship are respected as credible; science is conducted with integrity and excellence; DOI has a culture of scientific and scholarly integrity that is enduring; DOI scientists and scholars are widely recognized for excellence; and DOI employees are proud to uphold the high standards and lead by example. The policy was applied to all DOI employees, including political appointees when they engage in, supervise, manage, or influence scientific and scholarly activities; communicate information about DOI's scientific and scholarly activities; or utilize scientific and scholarly information in making agency policy, management; or regulatory decisions.
Two years later, FWS continues to struggle with science and whistleblowers concerned that disclosing misconduct may be punished rather than rewarded.
Steven Richardson, a partner in Wiley Rein's Environment & Safety Practice, has more than 20 years of experience in key staff roles on Capitol Hill and at the U.S. Department of the Interior and over a decade in private law practice. His practice focuses on regulation, public policy, and litigation in complex, high-profile matters involving water, wetlands, hydroelectric, land, energy, and environmental law.