Ethics for an Outsourced Government

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Author(s): 
Clark, Kathleen
Author(s)' contact information: 
John S. Lehmann Research Professor of Law Washington University in St. Louis law.wustl.edu/Faculty/pages.aspx?id=222 ssrn.com/author=110534 linkedin.com/profile/edit?trk=hb_tab_pro_top @clarkkathleen 314-827-4081 kathleen_clark@me.com
Conference title: 
U.S. Office of Government Ethics
Conference location: 
Orlando, FL
Year: 
2011

In recent decades, the federal government has greatly expanded its use of contractors to perform services, and now purchases more than $260 billion in services every year. The government increasingly turns to contractors to accomplish its programmatic goals, and contractor personnel are now performing tasks that in the past had been performed by government employees.
While an extensive array of ethics statutes and rules regulate government employees to ensure that they make decisions in the interest of the government rather than a private interest, only a few of these restrictions apply to contractor personnel. If a federal employee makes a recommendation on a matter that could affect her financial interest, she could be subject not only to administrative discipline but also to criminal prosecution. In most cases, a contractor employee who has that same financial interest and makes the same recommendation is not subject to any consequences. In fact, the government does not have any systematic way of even finding out when contractor personnel have such conflicts of interest. The personal conflicts of interest of contractor personnel are largely unregulated.
In light of the fact that so much of the government’s work is outsourced, the government needs to develop appropriate safeguards to ensure that the public interest is protected when contractors are doing the government’s work. This paper describes the complex set of government ethics statutes and regulations, identifies the principles underlying those restrictions, and suggests ways that those principles can be applied to government contractor personnel.

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