Guardrails and Guidelines

 Guardrails and Guidelines

“Gentlemen, if it costs more than a baseball cap, don’t accept it,” intoned the Lieutenant Colonel from the Fort Cavasos (formerly Fort Hood) Judge-Advocate-General office. 

Stifling a yawn, I glanced around the room at my fellow attendees, a bunch of bored looking lieutenants and captains. It was a hot fall day in Central-Texas and none of us thought this particular lecture important. The Army had designated Fourth Infantry Division, 4ID also known as the IV, or Ivey Division, the Army’s test division, and as such we expected a deluge of contractors to descend and descend, they did. Soon, each week brought a new toy or device for us to examine, play with, try to break, and evaluate. Along with the “cool-toys,” came contractors eager for positive comments by evaluators. The institutional Army well understood the moral battleground we were about to enter. Each contract dealt with millions of dollars and as junior officers; we were unprepared for the ethical quagmire we faced. So, we all had to attend a series of briefings designed to acquaint us with what was acceptable and ethical and what was not acceptable or ethical. We needed the briefings. Soon our lives were filled with contractors and offers of lunch, jackets, and yes hats. For the rest of my time in 4ID, we lived with contractors in our hip-pockets; but it would not end there.

As my career progressed, I found contractors and the associated inevitable ethical questions a regular part of my military experience. Coming back from my first tour in Iraq, I landed in Germany in V-Corps, where one of my major duties was to oversee the various automated platforms we used to construct a Common Operational Picture, known as the COP. On my first duty day, I walked into the office and was handed a copy of a new contract with a multi-million-dollar price tag. 

“We need to go and brief the two-star general and get him to sign the contract,” barked Toni, the civilian representative for the company (I’ll not mention the name of the company).

“So, is everything in order,” I asked, thumbing through the contract as we walked across the Kaserne in Heidelberg, Germany.

“Oh yes, of course,” replied Toni, “The general has already seen it and been briefed. We just need to get his final signature, “You don’t need to worry about anything.”

As usual, we arrived at the general’s office and had to wait for a while. I continued reading through the contract, making sure that I understood what was in it, when I came across a startling paragraph in the contract. The contract set aside a significant sum for the hiring of a person I knew was not qualified to hold the position. Additionally, they were the wife of a high-ranking person on the general’s staff. This was a clear case of conflict of interest and nepotism. They were to be paid over one-hundred thousand dollars to do a job for which they held no qualifications. I sat there in a quandary, wondering what to do and how to get out of this situation. Eventually we were called into the general’s office. We sat there at his conference table, he thumbing through the contract and me sweating bullets. 

“You know Matt, this contract is about one-hundred thousand more than I want to spend,” he mused, “Do you know of any way we could cut about one-hundred thousand out of it?”

Breathing a great sigh of relief, I replied, “Sure Sir, right here. We can cut this position out of the contract. We can shuffle its duties to other positions without much of a problem. If you’ll just line through it here and here and initial in both places. I’ll rewrite the contract and get it to you tomorrow or the next day.”

“Very good,” he replied, picking up a pen and lining through the offending position, “Get back with me as soon as you can.”

“Yessir,” I replied feeling much better.

Walking across the compound, I said, “Toni, don’t you ever lie to me again. I will be watching you like a hawk. I do not trust you.”

Toni never got better. He always worked on the edge of legality, and for the rest of my time in that position, I had to scrutinize his every move. In fact, years later in a different assignment, I would run across Toni again. His company was competing along with two others for a similar contract, and I was asked to provide a recommendation on which to hire. Of course, I did not recommend Toni or the company he worked for. When they did not get the contract, he accosted me in the hall.

“Sir, that was so long ago. Why do you still hold a grudge?”

“I don’t hold a grudge, Toni. You never changed and I do not want to have to work with you again. I know that you will still do the same things.” We never spoke again.

A debate regarding establishing a code of conduct, or ethics, regarding the Supreme Court has unfolded over the past few weeks. Recent information regarding multiple justices reveals a variety of questionable actions, actions which call into question the objectivity of the justices. In various venues Supreme Court justices, including Chief Justice Roberts, have demurred when asked about the need to establish a code of ethics for the Supreme Court. Justice Alito used the U.S. Constitution as his justification saying, “I know this is a controversial view, but I’m going to say it, no provision in the Constitution gives them the authority to regulate the Supreme Court – period.” 1

Whenever we enter into a realm inhabited by businesses competing for large sums of money, we must navigate an ethical quagmire. Businesses and their leaders seek to turn a profit, which is not a bad thing; however, when they seek to influence decisions through cultivating personal relationships with senior decision-makers they quite possibly cross an ethical line which may or may not be clearly delineated. This is why ethical guidelines are so important. As an Army officer, an official of the U.S. Government, I understood the limits. Living inside those limits allowed me to not only make morally defensible decisions, but they also helped me develop solid relationships with the various contractors I worked with. We all understood the rules, and for the most part, willingly lived by them. There were a few exceptions, such as Toni, but the majority of the contractors that I worked with did not seek to obfuscate the issues at hand. Apparently, the Supreme Court needs similar guidelines.

Members of the court have pushed back against calls for them to write such ethical guidelines, claiming that Congress has no authority to require such action. While I’m no constitutional scholar, the Constitution does make mention of the Supreme Court Justices holding their offices, “during good Behaviour.” Perhaps, a code of conduct, or ethical guidelines, might help Justices navigate the perilous waters of “good behaviour.” I understand the justices being charry of any encroachment upon their constitutionally outlined powers, but we have embraced the concept of checks and balances in order to ensure that the three branches of government not only work well, but also maintain public trust and confidence, a challenging task in today’s hyper-partisan environment. 

According to a recent Gallup Poll, public confidence in the Supreme Court is at a historic low. 2 While the same poll indicates the erosion of public confidence in many societal institutions, it remains quite troubling. It might behoove the court to take steps to shore up public confidence, and one of those steps could be penning ethical guidelines. Ethical guidelines lay out behaviors that are acceptable and behaviors we must avoid. They clarify relationships, making interpersonal interactions smoother, and when we know that the other party expresses genuine interest, unmotivated by nefarious gain, we find that the guidelines enrich our personal relationships. Instead of pushing back against such guidelines, the members of the Supreme Court ought to take the time to carefully construct their own. They intimately know the struggles and perils of holding such powerful positions. Taking such a step would help them pilot their institution through our hyper-partisan culture, and might restore some lost public confidence.  

1. https://apnews.com/article/supreme-court-ethics-alito-d98b0edf1340ff3ed66b345c5ddcf0dc

2. https://news.gallup.com/poll/394103/confidence-supreme-court-sinks-historic-low.aspx