The Complete Compliance and Ethics Manual 2021

Introduction

Compliance programs are a necessity, not an option, for government at all levels. Taxpayers deserve trust, and they expect that government employees will work ethically and decisively, and that public funds will be used efficiently and honestly. Government agencies must assess their own specific issues and put in place meaningful compliance programs to meet specific needs. Well-designed and effectively implemented compliance programs that factor in lessons learned from both the private and public sectors, coupled with proper monitoring and auditing, help to prevent serious compliance failures, challenges, and related consequences, even when humans prove to be fallible.

Effective Ethics and Compliance Programs—Value Proposition

Branches and levels of government are not much different from private companies or other organizations and, accordingly, should function with many of the same compliance measures. Public and private sectors are run by employees. Employees are human, and mistakes are made. Given this unconditional part of the human condition, and like private sector counterparts, government agencies must take more action to proactively implement and maintain effective compliance programs and related infrastructures. Public opinion bears mention here, with a survey showing Americans trust Amazon and Google more than government. Politics aside, this survey makes a point about trust. When asked about confidence in certain brands doing the right thing, government was seen as trustworthy by only 7% of those surveyed. Brands such as Amazon and Google, however, received 39% and 38% respectively.^[2] While some areas of government have already made compliance programs a priority, this is no longer a choice but a necessity to instill confidence and restore trust in the “government” brand.

Several resources exist and are available for establishing and reviewing compliance programs and the effectiveness of those infrastructures. Good starting places are the U.S. Sentencing Guidelines for Organizations^[3] (USSG) and the Department of Justice (DOJ) guidance.

The USSG provides a framework for the key elements organizations should have in place to meet a threshold of effectiveness. Importantly, an overarching goal and objective of this framework is to encourage organizations to establish and maintain programs that enable the prevention and detection of wrongdoing, and promote cultures that are committed to ethical conduct and compliance with the law. Effective programs not only help organizations to meet these important objectives, but also they help organizations to operate more successfully on every level.

An important complement to the USSG is the recently released DOJ Evaluation of Corporate Compliance Programs,^[4] with insight on considerations deemed important when evaluating compliance program effectiveness when organizations are facing enforcement action and/or when making charging decisions. Organizations striving for compliance program effectiveness can benefit greatly from this valuable and practical insight to proactively establish better, more effective programs and frameworks from the onset, regardless of whether it involves criminal conduct or not.

Further, other similar guidance and insights helping organizations to implement and maintain effective programs can be found in other resources such as the newly revised Foreign Corrupt Practices Act guidance^[5] and the DOJ Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations.^[6]

In general, government guidance offering compliance commentary and insights regarding program effectiveness may be aimed at corporations and organizations, but the government itself should be proactively looking to these nonregulatory “requirements” for ethical inspiration as well as compliance instruction when implementing and maintaining government programs. Effective compliance programs within government agencies that are transparent and visible can help to enable more effective operations, ensure better use of taxpayer funding, mitigate risks, and increase confidence in these agencies by the public.

Government Compliance Programs—Challenges, Strategies, and Opportunities

While 20/20 vision is usually associated with clear perspective, the COVID-19 pandemic in 2020 offered just the opposite. A bright light shone on every part of private and public sectors, magnifying existing issues that had, until then, gone unnoticed. Employees working at home regularly create privacy and other compliance issues neither intended nor contemplated. For example:

• Personal devices used at home can be subject to listening ears of nearby nonemployees with names like Alexa and Siri, bringing forth a myriad of confidentiality concerns.

• Paper files or even evidence can create chain of custody concerns in certain sectors.

• Transparency can become clouded with worldwide video chats with people in places all over the world.

• Public parks host six-foot distanced discussions about work topics can unconsciously enter public airways.

• “Public” meeting access can have technical twists as well as notice and location concerns, although on the upside, virtual meetings can increase audience participation and allow global eyes to view otherwise local (and sometimes lonely) meetings with low to no public attendance.

These examples highlight the challenges of maintaining regulatory compliance with laws requiring open meetings. A critically important core function in government, observation and scrutiny of deliberations and actions by government officials provide transparency, resulting in a more responsive and responsible government. Office closures will inevitably occur for a variety of reasons, such as power outages; regardless, government needs to be “open” and accessible.

In addition to access, government collects information and is obliged to keep private information private. Data shared with government may be subject to public access requests under “sunshine laws,” with private information redacted. At this time more than ever, public trust in government requires accountability and responsibility. Implementing and maintaining effective compliance programs may be a challenge, but it is not a choice. Governmental immunity does not make government immune from misconduct or human errors. This chapter looks at examples of proactive compliance program initiatives as well as government conduct where effective programs, if in place, may have minimized or prevented incidents.