This is a story of no good deed going unpunished. Robert S. Eitel did everything you’d want a public servant to do. An attorney in the Education Department of the George W. Bush administration, he was contacted in December about coming on board in a temporary capacity to provide guidance to the new administration. (So-called “landing” squads came on before the inauguration. Thereafter, they were referred to as members of the “beachhead” team, people hired for 120 days.) According to sources familiar with his situation, Eitel explained at the time that he was employed by a for-profit education company, Bridgepoint, and told the department he would need to talk to the department ethics officer before coming on board to determine what he could and could not do.
He was approached again in January and proactively consulted with the ethics officer before he accepted a temporary spot on the beachhead team. He spoke with the ethics officer designated by the department and was walked through the ethics issues applicable to his post.
He started on Feb. 13. That month, he met with the ethics officer no less than three times — on the 14th, 16th and 21st, according to sources not authorized to speak on the record. All employees, whether permanent or temporary, must recuse themselves from any particular matter involving an employer going back two years. Eitel did so but went further than that. He agreed to recuse himself from any matters relating to “gainful employment regulation” — that is, regulation of the for-profit industry and certificate programs from non-profit institutions. (Ironically, Eitel is known as someone in the education field who favors regulation of for-profits, but his voice won’t be heard at the table.)
He later took another step with regard to matters concerning current borrower defense regulations (regarding relief from repayment of student loans). The Obama administration greatly expanded the grounds under which students could be released from obligations to repay loans. The new, more generous rules are set to go into effect this July. Eitel was recused from the existing claims filed by students under the current borrower-defense regulations because students at his former employer had claims under the current rules. He went beyond that to recuse himself from ALL such claims filed by any students from ANY school (nonprofit, for-profit or not) under the current regulations. His request to the ethics officer was granted in writing for permission to work on the borrower-defense regulations that take effect on July 1 (and may be delayed or revised) and which govern student loans made when or after the new regulations go into effect. (In the Education Department, the ethics officer routinely puts her advice and guidance in writing.) In order to make certain his colleagues knew the matter he couldn’t be involved in, Eitel sent out a team-wide email.
So far, so good, right? Not quite. Eitel’s name wound up in a New York Times piece with a headline blaring: “Betsy DeVos’s Hiring of For-Profit College Official Raises Impartiality Issues.” (The article incorrectly identified Eitel as the “chief compliance officer” for the for-profit education company Bridgepoint. In fact, he was in the legal, not compliance, department and reported to the deputy general counsel, who in turn reported to the general counsel.) The piece quotes people in the education field outside the department who chafe at the idea that someone still employed by but on leave from a for-profit education company would be hired. The article makes much of a number of regulatory violations by Eitel’s past employers. (The report does not make clear that the compliance issues at another employer, Career Education Corporation, predated his tenure. He was hired to clean up errors, settle matters and advise the company going forward.)
Really, is there an impartiality issue? Well, the ethics officer is not raising the issue. She has signed off on his ethical guidelines. Eitel was never told to recuse himself from all higher ed matters, which seems to be the gist of complaint of those who are quoted in the piece. He’s gone far beyond what was required by the ethics officer. What, then, is a public-spirited official to do? If someone with relevant experience and the right background wants to serve and goes above and beyond ethics requirements, they will soon learn there is no way to be hired without being accused of impropriety. As a result, qualified and ethical people won’t serve.
The issue here goes beyond one person being unfairly singled out for criticism. The problem, in part, is the flawed and counterproductive system of hiring beachhead employees. Pro Publica reports, “While President Trump has not moved to fill many jobs that require Senate confirmation, he has quietly installed hundreds of officials to serve as his eyes and ears at every major federal agency, from the Pentagon to the Department of Interior. Unlike appointees exposed to the scrutiny of the Senate, members of these so-called ‘beachhead teams’ have operated largely in the shadows, with the White House declining to publicly reveal their identities.” And since they are not permanent hires, many must retain their employment (by going on leave) to protect themselves and their families if they wind up with no permanent spot. That puts many of them in the uncomfortable position of technically remaining employed by another entity while working for the government.
Trump was inaugurated on Jan. 20, and should by this point be nominating political hires and have empowered his secretaries to hire non-confirmable staff (as Eitel has been designated). Instead, his administration has perpetuated these temporary beachhead hires, leaving the hires in limbo. The system, according to those familiar with the situation, puts these hires in an uncomfortable situation, gives permanent career staff little guidance as to who their permanent bosses will be and creates ethical traps for the unwary. The administration would say this allows for people who only want to spend a short time in government, but hundreds of people are surely doing this with the expectation that they’ll eventually join the administration on a permanent basis.
The administration might like “trial” periods, but that’s a concept for the private sector. They should do what every other modern administration has done — hire permanent staff and make political appointments. That is the only way to get traction on policymaking and personnel; it’s the only way to get employees to make a clean break with past employers. And it will spare decent people from being falsely accused of having one foot in government and one in the private sector. At some point qualified public servants will ask: Why bother working for this crew?