Ethics Rules and the Role of the Ethics Counselor

     By way of introduction, I am the new Staff Judge Advocate (SJA) at Naval Supply Systems Command. I am both honored and privileged to have this opportunity to serve with you, and to continue supporting the warfighters and their respective missions. In my new role at NAVSUP Headquarters, I have been asked to offer my thoughts on ethics from an ethics counselor’s perspective. First and foremost, I want to emphasize that ethics is not the exclusive purview of attorneys such as myself and my colleagues within the NAVSUP Office of Legal Counsel. While we have a unique advisory role to play within the NAVSUP enterprise, the Joint Ethics Regulation (JER) places responsibility for executing an ethics program squarely upon the leader of each DoD component command or organization.(1)

    Former Secretary of Defense Leon Panetta described his expectations for reinforcing ethics as a central element of workplace culture as follows:

    “Such a culture is one in which honesty, accountability, mutual respect, and integrity guide all actions and decisions; employees uphold core values in daily activities; leaders, managers, and supervisors model the conduct they expect; and personnel with concerns seek the advice and support of an ethics counselor. It is the sum of our expectations, communications, and actions.”

    The ethics rules for all DoD employees–military and civilian–are found in the JER and the Code of Federal Regulations (CFR). The complete text of the JER and 5 CFR pt 2635 can be found at: http://www.defenselink.mil/dodgc/defense_ethics/index.html. These rules are complex and are not always intuitive; merely doing what you think is right might not always be enough. I firmly believe that the vast majority of ethics violations by DoD employees are not the result of willful noncompliance, but rather, a misunderstanding of the rules or a failure to realize that an applicable rule even exists. Because the JER and CFR can be difficult to understand and apply, designated attorneys, known as ethics counselors, are charged with providing ethics advice on behalf of the DoD.

    All DoD employees appointed as ethics counselors must be attorneys (2). Importantly, an ethics counselor represents the DoD, not the individual being counseled. This responsibility to the DoD and the relationship with the individual being advised has been summarized by Colonel Joseph Bialke, the current SJA at Third Air Force, as follows:

    “An opinion from a Department of Defense ethics counselor is advisory only. The ethics advisor provides only an arms-length legal opinion to the individual advised. More specifically, it is an objective government-counsel advisory opinion that provides a Department of Defense interpretation of ethics rules as applied to the facts relating to an individual’s proposed conduct … [W]e as ethics counselors are to assist a commander to succeed in the development of a credible ethical culture within the organization through the implementation of the commander’s ethics program. Consequently, we must, strictly on behalf of our sole client the Department of Defense, endeavor always to provide honest, principled, objective, factually accurate, soundly reasoned, unambiguous, timely, and consistent legal ethics advice. That is ethical ethics counseling (3).”

    Ethical behavior is essential to ensuring that the American people maintain trust and confidence in the military and its leaders. Public service is a public trust, requiring employees to place loyalty to the Constitution, the laws, and ethical principles above private gain. See Executive Order 12731 of October 17, 1990. Ethics counselors play a critical role in maintaining this public trust by “aspir[ing] to ensure that no unknowing ethical breaches occur by our leaders which could undermine their position or authority or which could cast public doubt upon DoD operations and missions.” See Bialke at 54. So, if you have any questions about the ethics rules and how these rules apply to your specific situation, please do not hesitate to contact the NAVSUP Office of Legal Counsel to speak with an ethics counselor … we’re here to help!

1 DoD 5500.07-R, §1-404, Change 7, November 17, 2011.

2 JER §1-212

3 Colonel Joseph P. Bialke, USAF, “Ethical Ethics Advice: A Department of Defense Ethics 35-Minute Light Read,” The Practical Lawyer, April 2013, at 43-44.

By Cmdr. Jon Peppetti, JAGC, USN, Naval Supply Systems Command Staff Judge Advocate