Berman versus Department of Interior - Term Paper Example

Berman vs Department of Interior Case Content ment of facts Perspective: Ethics Perspective:Accountability Perspective: Prevention Perspective: Political and bureaucratic environment Perspective: Media and other nongovernmental entities Conclusion Statement of facts This case involves Berman who has been a federal agent for twenty six years prior to his crash with the law. He works for the Department of the Interior is then contacted by the Project on Government Oversight (“POGO”) to help them in remedying the situation in the oil industry where the oil companies where exploiting the federal and Indian lands by devaluing their miens and then reporting to the Mineral Management Service of the U.S. Department of the Interior after they have been devalued such that they pay less royalties than they owe the mines. Berman undertakes to bring the culprits to book by aiding POGO in drafting the draft Freedom of Information Act (“FOIA”) which allowed them to file for two qui tam actions in the United States District Court. As a result, they were paid $440m from the litigation. This was the value of the royalties owed by the oil companies. POGO had already promised to pay a third of the money they will be paid after the litigation and thus when the money was compensated, POGO sent a check of $383,600 to Berman and enclosed therein an indication that the money was an award for his dedication and not for payment of his services. Alter on, the Department of the Interior sued Berman for violation of ethical obligation and breach of fiduciary duty. Perspective: Ethics The perpetrators in this case were the Project on Government Oversight (POGO) and Berman. The societal values they violated was the compensation of the $383,600 check out of the $440 million which was meant to be for the royalties which were underpaid to the federal and Indian lands by the oil companies. They should have given the money to them instead of suing it. Organizational values which were violated in this case were the payment of lump sum money to a government employee for tasks done for the government apart from the salary. Thus, POGO should not have given Berman the check since he was already doing his job. Berman’s ethical obligation concerning oil royalty matters was to deliver the paid money to the underpaid federal and Indian lands by the oil companies. There are competing obligations in this case since the money paid to Berman was meant to be an award for his decision for his work in the past decade while the punishment in this case should be applied to payments given to government especially for future work (Denhardt, 1988). The obligation of the non-public officials in this case was to ensure there was no mismanagement of public resources or abuse of power. They owed this obligation to the public since they were working for the society and represented the societal values of the community. The ethical culture of the POGO has not been characterized by fighting mismanagement of public funds and abuse of power in the country. The ethical culture in the case was influential in sparking the controversy of the payment made to Berman. Several notions of Cooper are applicable to this case. Copper advocated for ethical universals required of a public administrator which are freedom, honesty, self-determination, trust, and stability (p. 399). Although there are other ethical universals, the listed universal are the driving force which prompt POGO and Berman to fight underpayment of royalties by the oil companies. Copper also holds that the ethical problems in the society are complicated due to the myriad nature of ethical obligations. There are other notions of Cooper which are not applicable in this case. Copper advocated that ethical analysis of moral obligations at the post ethical level is determined by the fear of officers to get caught and religions conviction (28). This is not applied in this case since its domain is in the public domain and the ethical obligations are driven by service to the public (Guerreiro 1981). Perspective : Accountability The public official were accountable to the government for the delivery of services to the public while respecting the constitution which mandates the public officers to refrain from having conflicting interest in the benefits of the public. As such, the public officials should not take any payment for the salaries of functions performed in the society other than the salary paid by the government. The public officers are also accountable to the Agency’s Office of Policy Analysis which has the authority of charging the public officers with crimes of misconduct and imposing disciplinary actions on them. There is no notable conflict between the two bodies since they reached the same disciplinary action against POGO and Berman. The two organizations enforced accountability on Berman by proposing and actually implementing his removal from employment (Thompson, 1987). There were different levels of accountability in this case. The public officers were accountable to the government through the Attorney general and the society for addressing the issues of the society in relation to the mandate bestowed on them by the office they hold. Berman was viewed as having violated the rules of his duties and responsibilities as a government officer. Their accountability is ensued through the court of law as they are sued for their misconduct in the public office. The non-public officers were also held accountable of ensuring that their conduct was in line with the responsibilities of the offices they hold. POGO was held responsible paying Berman $383,600 when he was already a federal agent. The accountability expectations of public officials and nonpublic participants were reasonable as the officers were not required to observe very strict rules. However, the measures imposed by the court and the Agency’s Office of Policy Analysis to remove Berman from employment was not right as it was very excessive considering that this was the first charge to be brought against him in the twenty six years of service he had served the federal government. Furthermore, he accepted the $383,600 check believing that it was an award for his services in the last decade. The money had no bearing on the work he had performed for the organization and thus, the accountability was unfairly imposed on Berman. Perspective: Prevention The main enabling environment that led to the violation was the request form the POGO organization to Berman to enable them to remedy the situation in the oil industry where the oil industry were underrating the mines in order to undervalue the royalties they pay to the owners. This was also characterized by the mismanagement of the funds and because of power in the oil industry. Thus, POGO came into a consensus with Berman to a draft Freedom of Information Act (“FOIA”) which allowed them to file for two qui tam actions in the United States District Court. As a result, they were paid $440m from the litigation. This was the value of the royalties owed by the oil companies. This was the cause of the violation since POGO had already promised to compensate Berman a third of the value paid by the court. Another external factor responsible for the violation was the status of Berman at the time of receiving the compensation. He was already part of the federal government and as such, he was not supposed to take any other form of compensation for such tasks. Furthermore, he had declined to be involved in the cases as a co-relator which could have given him a better position in the case. The solution to the problem would be for the court to consider the motive and nature of the money paid to Berman by POGO. The court was intent in using section 209 to hold Berman accountable for ‘Office of Government Ethics regulations’ without considering in-depth the nature of the payment. While the jury had already been instructed by the court to consider the intention for which the payment was for, it was evident that the intention of the jury with regards to this issue was disregarded. This is because the type of compensation Berman received did not match the same type of punishment he was getting for it. Berman was being charged for violation of ethical obligation in his federal duties as a result of talking more compensation due to the work done. However, the true reason why he took the money was because the money had a note which indicated that the compensation was just an award for his dedication in the last decade. There was no rule which denied the public officers from accepting awards. The summary provided by the D.C. Circuit read in part: This meant, for example, that the jury was permitted to determine whether POGO intended its payment to be compensation for Bermans internal government memoranda (as the government would have it), or instead for his generalized whistleblowing activities (as POGO would have it). But it also meant that the jury was not permitted to consider whether POGO knew that both kind of service (and particularly the latter) was actually part of Bermans government duties. POGO VIII, 616 F.3d at 566. Other similar environments in the future should consider involving the federal officers in a co-relator relationship for whistle blowing. In this case, the whistleblower will be entitled to a percentage rate of compensation for the money recovered through litigation of an agreed amount. Should Berman have accepted to be a co-relator, he should have been safer when the suit was brought against him since he would have been entitled to compensation from his work in the suits against the oil companies. Once these measures have been put in place, they will be sufficient to prevent similar cases in the future. Perspective : Political and bureaucratic environment This case was affected by the rigidity of the political and bureaucratic environment. The case became complicated while the content of the case provided the rationale for the payment of the $383,600. Form the court summary of the case, the judge acknowledged the need for the jury to take into consideration the intent of POGO in paying the money to Berman. POGO has already intimated to the court that the money was meant to be an award for his past dedication and for whistleblowing in this context (Burke, 1986). The charge on the breach of fiduciary duty between the employee and the employer can be traced to the political and bureaucratic environment where politics get in the way and manage to influence the manipulation of law. There was no express or implied employer employee relationship since Berman and POGO had already expressed concern that they had not legally decided on the fee charged by the employee to an employer. It is therefore a very strict measure for the court to punish Berman for breach of fiduciary relationship (Cooper, 1990). The charging section 209 also required for the court to establish that the intention of the accused in taking the compensation was a feature which was bringing it within the scope of the statute. The law does not require one to show willful violation of the statute. According to the position of the court, “"the evil Congress sought to prohibit [is] payment intended as compensation not just for services, but for services as an officer or employee of the executive branch." Id. at 557. Perspective: Media and other nongovernmental entities The media played a major role in airing of the case and ensuring broadcasting of the progress of the case in the public domain. The media did not record any instances where it interfered with the case. Instead they promoted the accountability of the government by allowing the case to be exposed to the public domain. The motivation of the media in this case can be traced to their ethical obligation to inform the public of the proceedings of the court. Hence, it is imperative to say that the media reported the case fairly. Perspective : Historical Context There are other similar cases which have been decided using the same procedure in this case with respect to violation of the fiduciary duty of the employer by taking compensation which is unacceptable by law. United States v. Mark A. O’Hair is a case where the defendant, Mark A. O’Hair was accused of breaching the fiduciary duty of his employer by Schaller Engineering, Inc. (“SEI”) by taking payment from tow directors of the company, Schaller and Sumrall and failed to disclose the money. As such, he was charged with violation of 8 U.S.C. Sec208, and was sentenced to six months of imprisonment and three years of probation. This case was fair since the defendant had overtly conspired with the tow directors to accept the money knowing very well the implication of such as move. On the other hand, Berman was not aware of the application of the statutes on his case. Conclusion This case took a long time before the conclusion taken at the end was reached. The case followed different channels as Berman seeks to get a reversal summary of his case. Berman was accused for ethical violation of the terms of his office and his duty to the government and the state. Being a federal agent, section 209 requires him not to take any other compensation for tasks performed in the course of his duty except for his salary. However, this case cannot be said to be transparent in all sincerity as there are many instances of political and bureaucratic instruction such that the law acquires manipulated connotations rendering some of the material facts unusable in this case. Berman is unable to be acquitted at early stages of the case despite the facts relating to the issues clearly outlining that he did not know at the time of receiving the money that the statute applied to the case as it did. References Berman v. Dep’t of Interior, Docket No. DC-0752-09-0294-I-1, slip op. at 2 (M.S.P.B. Oct. 30, 2009) Burke, John. (1986). Bureaucratic Responsibility .Johns Hopkins University Press. Cooper, Terry. 1990). The Responsible Administrator. Jossey-Bass. Denhardt, Kathryn G. (1988). The Ethics of Public Service. Praeger Guerreiro Ramos, Alberto (1981). The New Science of Organizations. Toronto: University of Toronto Press. Rohr, John. (1978). Ethics for Bureaucrats. CRC Press. Thompson, Dennis F. ( 1987). Political Ethics and Public Office. Harvard University Press. Thompson, Dennis F. (1985). The Possibility of Administrative Ethics, Public Administration Review, vol. 45 (September/October 1985), 555-561. Thompson, Dennis F. (2004) "Restoring Distrust" in Restoring Responsibility: Ethics in Government, Business, and Healthcare (Cambridge University Press, 2004), 245-266. ISBN 978-0521547222 Read More