Federal employees are protected if they refuse an illegal order. Most of them may not know it.

Guest:	Sean O'Keefe and Josh Gotbaum
Title:	Authors, and long-time civil servants
Summary:	The Follow the Rules Act, signed by President Trump in 2017, prohibits federal agencies from firing, demoting, or punishing employees who refuse to carry out orders that violate the law. The authors of a recent Brookings commentary argue that many federal workers remain unaware of those protections and the obligations that come with them.

The Federal Drive with Terry Gerton provides expert insights on current events in the federal community. Read more interviews to keep up with daily news and analysis that affect the federal workforce. Reach out to Terry and the Federal Drive producers with feedback and story ideas at FederalDrive@federalnewsnetwork.com.

Interview transcript

Terry Gerton Sean, I want to start with you because you two both recently wrote a commentary for Brookings exploring what options federal employees have when they think they’ve been directed to do something illegal. Sean, you’ve led organizations where a bad decision can cost lives. What did that experience teach you about the role of dissent in a well-run organization?

Sean O’Keefe That leaders need to hear it. They need to understand that there is a difference from what they’re articulating as it’s heard by the folks who will be carrying it out. And so understanding what those differences are and why they may see it differently is worth spending the time sorting that out before you proceed ahead.

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Terry Gerton You’ve been in some tough positions. Can you give us an example from your own background where your subordinates disagreed with your decision?

Sean O’Keefe Gosh, there’s so many of those. I have to think about that. But there certainly was one that was widely covered, I guess, was following the tragic Columbia accident, which we lost the seven-member crew of the shuttle Columbia. The determination was we needed to ground the shuttle program until we could find out what the problem was, go fix it. And then get back to doing what those seven remarkable people had given their lives for. Well, in the middle of that, the determination was made by other engineers and the astronomers that the Hubble telescope, if it wasn’t serviced within the next 24 months, needed to be dealt with immediately because it was going to go dark, because the gyros would fail, batteries would cease. And we’d lose the remarkable Hubble telescope. And so the determination was we needed to get back to flight right away. And my determination was, no, we committed that we’re going to find out what the problem is, go fix it, and then get back to this. And if the consequence is a multitude of it could be occurring in the course of that time, and, therefore, you’ve got to really be serious about that kind of a choice or not. But there were plenty of astronomers, I mean plenty, who reminded me why the Hubble was such a remarkable instrument. And I said, well, we can’t determine what exactly occurred yet or how to go fix it if it were to happen again to risk the prospect that the value of what you think is important is worth another seven people losing their lives. So, that’s the judgment I made, and it was the one I needed to hear, and they were courageous enough to raise it and understood they didn’t necessarily agree with the answer to that. And as it turned out, the shuttle was back in business in enough time to service the Hubble telescope long after it was predicted to go dark. So, the engineering assessment being what it was wasn’t nearly as good, but I thought standing up to that principle was far more important.

Terry Gerton Josh, Sean’s just given us a great example. From your perspective, what’s the line between being a good subordinate and being a responsible public servant?

Josh Gotbaum Being a responsible public servant, all of it — I started as a civil servant maybe before half the people in this audience were born, at the Office of Management and Budget, and you take an oath to do your job consistent with law, and what they don’t tell you is that public service is sufficiently complicated that it’s not always obvious what the best thing is to do, what the allowed thing to do is, etc., and so the point that Sean makes which is you need to talk. You need to communicate, you need to ask questions, etc. Because the oath is, we will do our job consistent with law, but the doing of the job requires figuring out which objections are real problems and which objections are just people saying, don’t bother me.

Terry Gerton So, the government has a lot of lawyers, but not every government employee is a lawyer. So when they’re in a spot where they’re not sure, how do they figure out what is lawful and what is not?

Josh Gotbaum A very good question. I think the most important thing to remember is that federal employees are experts. They know their jobs. Those who handle procurements know the procurement as well as any outside lawyer does. And so you start from a base knowing your job and knowing the rules that govern your job. So you know what the law is, you know the regs are, you know what agency rules are. So you’ve already got a basis of knowledge. Now, if there’s a question, as we’ve said, part of the job is to raise questions and say, can we talk to General Counsel about this? Let’s send him a note and say here’s what the question is. And you can be explicit and say, I’m nervous because I’ve been asked to do this or we’re trying to do and it looks like it may not comply with procurement regs or whatever. But the main point is you start already knowing a lot. You can always consult with agency counsel. And both of those ought to be, you ought to rely on both of those.

Terry Gerton Sean, you were secretary of the Navy. Military folks get training in lawful orders and unlawful orders and what to do. Civilians rarely get that same message. How important is that difference?

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Sean O’Keefe I think it’s very significant, and you’re absolutely right. In the military, it’s not like there isn’t any ambiguity about the question of what is lawful or not, but there are avenues that they’re reminded that they can work with, with some regularity. And again, you can attest to that probably far better. But it is almost absent on the civilian side of the equation. And it really takes the leadership to step forward and say there are avenues for you to speak up on what you think may or may not be the right thing to do, the lawful thing to, whatever it is, use them. This is part of the issue. And so if there was at least some comparability between the amount of time that’s spent with the military, having them understand conditions under what is determined to be lawful, and the civilians were to have a similar situation, I think you’d find some differences in the mindset.

Terry Gerton Josh, you’ve been career civilian. What’s your take on that?

Josh Gotbaum It’s actually, Sean is entirely right. But part of the reason why we wrote this article is because there are more than two million people, civilians, working in the U.S. government and no one says to them, your first obligation is to follow the law. And if you are asked to do something that violates the law, or an agency rule, or published regulation, etc., you have the right to say, sorry I can’t do that. And no one was telling them. So that’s part of the reason why we wrote the reg. Now, this was a law that was passed unanimously by the Congress in 2017. It was signed by then President Donald Trump. But no one is telling the civilian employees of the federal government, you have to follow the rules. They don’t mention the, follow the rule. The Office of Personnel Management does not say you follow the roles. Their bosses don’t say you have to follow rules, etc. And so that’s frankly why we wrote the article and what we’re doing now is we are saying to their unions and to the public interest groups, etc., how about making sure that people know that when they’re given an order that is squirrely that they know they have a choice of either just following orders or quitting, but they don’t know that they actually have a third choice, that the third choice is they can ask questions and say, you know, I’m just not comfortable with this, can we make sure it’s lawful?

Terry Gerton So Sean, Josh just raised the Follow the Rules Act. Very clear title. Were the authors of that act trying to create or trying to address the gap that we just talked about, the difference between what military folks are taught about lawful and unlawful orders and what civilians know about them?

Sean O’Keefe Well, I fear not. I think that, you know, the the genesis of the Uniform Code of Military Justice, which is what is, you know, embodiment, again, the codification of what also includes the determination of what is and isn’t lawful for military. It is, if you listen to the term, it is the Code of Military Justice. How is justice meted out? The unfortunate challenge, I think, with the title of Follow the Rules Act is to be conforming. You know, don’t think about it, just do what it says. And that’s not the intent. What they really were looking for was an understanding of what the objective is and how to achieve something. And determining the means you use and the goal that’s articulated is lawful. And that’s not just follow the rules. But it was laid out in a way that at least started that dialog. And that was what I found to be very constructive about it. It may not be as clear as what it is of a judicial kind of understanding that the military [knows] and have had the painful experience of realizing why it’s written in such a way that provides that clarity of what is a lawful means to accomplish a mission. And if there was something comparable, you’d find that on the civilian side as well and that title would have been slightly different.

Josh Gotbaum Can I just add one historical point? There was a prior law and the law said you can’t sanction a federal employee for disobeying an order that violates the law. So, someone was fired for refusing to do something that would have violated the — I can’t remember whether it was the procurement reg or something like that but it was a regulation not a law — and some court said no, no this act says the law, it doesn’t say rules or regulations and so the Congress of the united states unanimously expanded the law to be violations of law, rule or regulation. So they were trying to make it clear that this is something you should pay attention to and that the protection is broad.

Terry Gerton Josh, let’s pull on that string a little bit because we’re talking primarily about what federal civilians have in terms of protections and responsibilities. But career employees and political leaders often have different responsibilities. When they disagree, what does each side owe the institution and how does this responsibility for legality and perhaps dissent play out?

Josh Gotbaum Having been both a civil servant and a political appointee, we all have an obligation to obey the law. We all sign an oath to say to do our jobs. We all do that. Obviously, the things that motivate political appointees are a broader set of influences than the career folks. And everyone always says, and I think it’s absolutely true, there is always a natural tension. But, and this gets back to what Sean said, we both have the job of serving the public in accordance with the law. And the way to make sure we’re doing it is in fact to talk about it, is, in fact, to discuss differences to make sure that what we’re doing is allowable and if it’s questionable maybe there’s another way to do it

Sean O’Keefe No, I concur with that entirely. I think Josh has got it right on the mark. I recall very vividly my first job was as a career civil servant as a GS-0 step -7 or something. And my job was to make sure the Xerox machine didn’t run away. I mean, I was faithful at that task. And in all those years though, the oath I took was exactly the same one I took many times later, in many appointed capacities. So, you know, there is, the objective is, and I was reminded in the administrations I served, that whether you serve for a season, a year, a term, or a career, you’re serving the public. And that’s the objective, is to get that right. And yes, the policy guidance will come from those who are in appointed capacities often, but at the same time, it’s still the same objective of serving the American public, and that your task is to do it in a manner that is prescribed by the legal method of accomplishing that task. So enough is really placed on the issue, even with civilians, of exactly what is and what isn’t a legal means to accomplish some task and everybody learns that along the way with the same oath.

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Terry Gerton Sean, we’ve been speaking a little bit theoretically here, but let’s bring it down to reality because in truth, someone can do the right thing here and dissent and still lose their job, still be punished for it, still face long years of court battles. How do you want current federal employees to think about the risk?

Sean O’Keefe Well, the challenge that goes along with that inevitably, and this is true for military as well as civilians, I mean this doesn’t differentiate that in those circumstances in which you think you’ve been wrongfully discharged from your obligation as a public servant, whether you’re wearing a uniform or not, is you’ve made that choice, and then in turn, there needs to be a determination, a means by which that is adjudicated, if you will. In both the military as well as in the civilian side, there are avenues to do just that. It doesn’t need to be a long, painful debate going forward. But you do need to consult with the folks who understand what those avenues are and use them for those purposes. And so, you know, through the UCMJ process on the military side of military justice, or whether it’s through the Merit System Protection Board for the civilian side, there are avenues to do this, and it does not need to be a long process, but yeah, being a public servant requires the courage to step up regardless of whether you’re wearing uniform or not.

Terry Gerton Josh, the paper points out, though, that MSPB and the Office of Special Counsel have been re-engineered under the Trump administration, and those paths might not be so productive anymore. What do you want federal employees to think through?

Josh Gotbaum Before you get to the point of having to decide, okay, do I do it or quit, you should ask questions about it. You should start the kinds of dialog that Sean talks about. You can say, how should I be clear about what you’re asking me to do? What’s the reason for it? It’s perfectly OK, since you are an expert in what the law and the procedures are, to say I’m nervous about the legality of this, etc., can we get an opinion, et cetera? So my point is, before you get to the decision of, okay, do I do it or quit? Signal that there’s an issue here that you’re not trying to be dogmatic you’re trying to serve the public in a way that complies with the law etc. And do that first. Get things in writing, ask your questions, see if you can involve lawyers, if you need lawyers, etc, etc. And do all that before you make your decision. By the way, there are other, there are also folks you can consult. You can consult, for example, if you’re a unionized employee, your union has counsel, there is a group called Rise Up Legal Services that does volunteer legal work for federal civil servants who are faced with these kinds of problems and there, etc. And in some cases for that matter you can you can talk to your inspector general about them. You can do all that before you make the, do I quit, do i force them to fire me or do i do it? Because those really are the choices.

Terry Gerton So Sean, Josh has just described an environment that to me requires some trust, that if you’re going to be transparent with your concerns with your supervisors, you’re trusting that that conversation is gonna be received well. I feel like you all wouldn’t have written this article if you thought that the current environment was entirely trustworthy. So what guidance do you have for leaders right now as they’re facing these really difficult challenges?

Sean O’Keefe If you think that you’re going to accomplish the objective all by yourself, you’re kidding yourself. That’s the first thing every appointee ought to come to grips with, that there is a force of extremely competent, very well-trained, and very dedicated, as a general proposition, public servants who are part of every organization. Find out who they are. And really understand that what you’re going to deal with are a series of challenges going forward that are implementation challenges. That developing the policy or what the direction ought to be is one thing, and it ought to informed at a minimum, but to the extent that it’s not, you’re nonetheless gonna have a lot of challenges implementing whatever that is. And if you think you’re doing it all by yourself, you’re kidding yourself. And therefore, you really got to find the experts who understand the way it can be accomplished lawfully, properly, and with the intent that was indicated or at least inspired by what the policy choice was.

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