Bullying the Civil Service

by THURMAN ARNOLD

MY only claim to expert knowledges on the problem of how to improve the ethics of government employees is the fact that I myself am an escaped government employee. For five long years I was interned with the group whose ethics are now alleged to have reached such a stage of deterioration as to create a national moral crisis. To meet that crisis a resolution has been introduced in the Senate proposing that all United States civil servants be fitted out with an ethical code to guide their erring steps and be supervised by a commission with subpoena power, a staff, and an allowance of $50 a day (which incidentally is a much larger remuneration than most preachers are able to command).

Much as I dislike to appear in opposition to any sort of moral reform, I must dissent. I concede that the Congressional investigation of some particular agency whose conduct has become notorious is a. salutary thing. To a long series of such investigations since the day of the political bosses we owe our steady rise of government morality and ethics in the last fifty years. But it is a mistaken idea to think that because it is possible to reform a particular agency that has gone to seed, it is therefore possible or desirable to reform even body all at once. Ethics in any group arise out of a sense of tradition and pride in their particular calling. Humiliate that group; subject them to constant restriction and supervision; refuse to trust them in any of their activities in or out of government — and you destroy any possibility of an effective ethical code.

A code of ethics will work for the National Association of Boy Scouts. It will not work for the National Association of Reformed Juvenile Delinquents. This is because you must first develop a sense of pride before you can create a sense of personal integrity. Though the analogy is extreme I will nevertheless attempt to demonstrate that the present attitude toward government employees in the press, in Congress, and among the public generally, makes it very difficult to maintain the sense of pride necessary for a code of ethics.

There are approximately 2.5 million civilian employees in the service of the United States, engaged in every form of activity known to civilized man. As a group they have no interests in common and no traditions. Except for headline jobs the prestige value of government employment is low. Government employees are not patriots like soldiers. Instead, at taxpayers’ expense they are engaged in a continuous campaign to harass honest citizens. Even those not actively malevolent are wasting the taxpayers’ money. Every time one is cut off the payroll the press cheers. Such is their tendency to err and stray like lost, sheep that more than any other group of citizens they must be constantly watched. Their expense vouchers are scrutinized by the General Accounting Office on the theory that no government employee’s word can be trusted. He is too apt to cheat. When they travel they are not allowed to live at the same hotels with their opposite numbers in industry. I have been trying cases against able and competent government lawyers. When the hearing is over we part because they have to find the cheapest hotel. Even then they do not breakeven. If this be a test of efficiency then no private business in America, is efficient. It was recentlv discovered that government employees were using automobiles on government business, instead of standing up in buses. The supply of automobiles was immediately cut. Give these fellows an inch and they will take a mile. Let the rascals walk in the interests of economy.

Nor does the agency itself as distinguished from the individual have the protection to its good will that the law gives a private business. If anyone published that a steel company was a hothed of incompetence and special privilege he would have to prove the truth or respond in damages. The most reckless charges can be made about a governmerit agency with practical immunity and public applause.

The methods by which the loyalty of civil servants is tested are a further illustration of their status as second-class citizens. No official in industry, regardless of his connection with the war effort, can be found guilty by any tribunal of probable disloyalty without evidence. No officer in the Army or Navy, even though he has access to military secrets, can be deprived of his commission and dishonorably discharged unless actual evidence is produced against him at a court-martial. But the civil servant, even though he be engaged in a job with access to no secrets whatever and in a nonsensitive agency, is considered inherently so untrustworthy that the tribunal which tries him may use reports of secret police and give credence to the unsworn statements of unidentified informers whom the tribunal itself has never seen. This has been sustained four to four by the Supreme Court of the United States on the theory that neither the ruin of a civil servant’s career by branding him as a probable traitor nor the loss of his job is a punishment of sufficient severity to require his protection by due process.

In 1894 Dreyfus was convicted by a French Military Tribunal on a report of the secret police, received as evidence but never disclosed to the accused. Five years after that decision the French courts, compelled by the indignation of the civilized world, reversed the decision and reopened the case on the ground that French law would not treat such a secret report as evidence. After the end of the last war German judges were tried by a Presidential Tribunal. They had received reports of secret police as evidence. This, said the President’s Tribunal, represented “the final degradation of the judiciary.” These German judges are now in jail.

The President’s loyalty order proclaims on its face that in order to obtain “maximum protection” to the government, and “equal protection” to the employee, findings impugning his loyalty must be on “all the evidence.” But both the loyally boards and the courts have interpreted the term “evidence” to include secret police reports undisclosed to the accused. Newspapers in commenting on the case said it was a harsh rule, but necessary to protect the government from disloyal civil servants. This means that government employees are to be treated as a class apart. Their loyalty is to be judged by the Gestapo procedures denounced at Nuremberg. They are as prone to evil as the sparks are to fly upward. It is not safe to accord them any rights that a white man (cf. the Dred Scott decision) is bound to respect.

What are the compensating rewards for government service? Certainly they do not lie in the area of prestige and income. The daydream of every government employee is that some day he may get an equivalent job in the industry in the affairs of which he becomes a specialist. This specialized training, leading as it does to industry contacts, is the only reason I can think of why a brilliant college graduate with an opportunity elsewhere should enter civil service. But when it was observed that men in government were constantly leaving for more remunerative jobs in industry, the moral watchdogs were unleashed. It was assumed that it could not have been their ability that got them these jobs. It must have been their influence with their former colleagues. And so to an increasing extent civil servants who leave an agency are prohibited from appearing before it for two years.

Fortunately the Congressman is thought to have greater moral stamina. A defeated Senator may appear before a committee of Congress without fear that its power of independent judgment will collapse under the impact of a former associate. As a resigned federal judge I may appear before my old court, which is assumed to have sufficient integrity not to decide everything my way as a reward for my leaving them. This is not true, however, of the relationship of a civil servant with his former administrative body. When he drives up in a Cadillac on a private job, and with an expense account, his former associates bow before him as grass in a high wind. Better keep him away for two years until members of his commission have time to gather strength to resist his blandishments. In the meantime he can get a job digging ditches.

The absurdity of this current folklore of the civil service can be illustrated by applying it to industry. Suppose a salesman for a steel company accepted an offer with a customer at a higher salary. Suppose the president, after congratulating him, said, “I must insist on one thing after you leave. You must not conduct any negotiations with this company for two years. You have so much influence here that I just can’t trust my staff. Stay away until we are able to regain our power of independent judgment.”

Influence, in my judgment, is a vastly oversold commodity in Washington, but in the instances where it appears, it will not be curbed by a humiliating restriction placed on government employees as a whole. If the government service has been deteriorating, I would assign as an important cause, that it is becoming so harassed, restricted, preached against, distrusted, and generally kicked around that brilliant young men with other opportunities pass it by. It may be that a Commission on Ethics would be only another snowflake in the Washington storm. After all, what is one commission more or less in the blizzard of bureaus that swirls around our nation’s capital? And, of course, after its staff was once organized and had moved their families to Washington, it could be cut 10 per cent, thus substantially adding to the money which Congress could save on the next annual budget. But, in spite of this advantage, some instinct impels me to advise against it.