Trump’s New Ethics Chief Alarms Ethics Community

What’s the story?

Last week President Trump elevated David Apol — leapfrogging him over his supervisor — from the position of general counsel at the Office of Government Ethics (OGE) to be its new director, following the resignation of Walter Shaub Jr. Despite Apol serving for 30 years in the ethics field, his appointment is raising eyebrows due to his history of challenging strict readings of statutes regarding conflicts-of-interest by federal employees and officials.

Why does it matter?

Typically, when an agency director resigns the next career official in line would be elevated temporarily to the position until a replacement could be nominated and confirmed. In this case that would have been Shelley Finlayson, the OGE’s chief of staff and program counsel. However, according to the 1998 Vacancies Reform Act, "the role of OGE’s acting director automatically goes to OGE’s highest-ranking career official, the chief of staff, unless the president overrides that designation."

The president has the legal right to appoint Apol, though the move to forego Finlayson prompted a strong response from recently-departed director Shaub, according to Government Executive:

"If they have someone they like, they should formally nominate that person to be permanent director. This sort of political interference creates the appearance that the White House may be hoping to engineer looser oversight by reaching down and leapfrogging a career employee over his own supervisor temporarily."

Shaub left his position early following months of sparring with the administration over ethics concerns. Since leaving he has been vocal in his perspective that the current administration presents an "ethics crisis." For their part, the administration has characterized Shaub as partisan and says that he never properly raised his concerns with the White House while he was in the position to do so.

The concerns about the appointment of Apol aren’t limited to his being elevated over someone above him in the ranks, however. The New York Times interviewed several former colleagues and senior officials about Apol, and Richard M. Thomas, who served as associate general counsel at the agency until 2011, had this to say:

"Dave Apol is undeniably smart. However, in my experience, Dave had a tendency toward idiosyncratic legal interpretations that frequently were more permissive than O.G.E. orthodoxy."

Apol agrees with the characterization of himself as someone who questions the way things have always been done. He told the Times:

"As an attorney in the office, I thought it was useful to ask if all the assumptions we made and practices we had were necessarily the best way to do things. I would oppose changing the rules in any way that did not protect the public’s trust."

So far the White House has applauded Apol’s approach, which has involved closer collaboration than has historically occurred. Apol is reported to be consulting with the White House before he issues policies, a practice that his predecessor Shaub insists threatens the Office’s independence. The White House disagrees, issuing this statement, which includes a clear reference to Shaub:

"The White House welcomes a return to a traditional working relationship with the Office of Government Ethics in which both entities share a common goal of ensuring public confidence that the executive branch is adhering to the highest possible ethical standards as opposed to an approach whereby individuals manufacture false conflicts for purposes of self-promotion."

Apol will get to display his "independence" soon, as he will have to make a determination about the issuance of a certificate of divestiture (CD) to newly appointed White House Communications Director Anthony Scaramucci for the sale of his stake in the investment firm SkyBridge Capital. CDs are issued to government employees in the executive branch to minimize their tax burden as they sell off property, investments and businesses to avoid a conflict of interest. The controversy surrounding Scaramucci’s request for a CD is that he initiated the sale in January, prior to joining the Trump administration, and CDs are supposed to issued prior to the commencement of divestiture proceedings.

The CD would offer Scaramucci a tax break equaling tens of millions of dollars despite that fact that it may no longer pose a conflict of interest since he has already agreed to sell his investment firm.

So far Apol has said of the Scaramucci issue:

"The test whether we issue a CD is whether or not it meets the requirements in the law. If it does, we will; if it doesn’t, we won’t."

What can you do?

Do you think the White House should expedite the nomination of a permanent director of the OGE? Are you concerned about ethics oversight of the administration? Do you approve of the White House’s decision to elevate Apol to run the OGE?

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— Asha Sanaker

(Photo Credit: Wheaton College)