Business and government agencies. The primary focus of my topic is threefold. First, if a high-ranking official from a firm were to become the director of an agency and his former company is asking for approval of a drug, how should the director act in regard to this rulemaking? The second question is not difficult: if a former director were to assume a position at a firm asking for approval of a drug, how should the former director’s position influence the decisions of the agency? Finally, how could government regulation limit the potential conflicts of interest from the Revolving Door”?
The answer to the first scenario is both ethics and law-based. It would be unethical for the director to have any influence whatsoever in this circumstance. Realistically, the director would probably have at least some influence to the degree that those who work for him would at least try to guess his desire for the outcome. At worst, he would directly or indirectly tell them. Probably, at this point, no procedural rules have been breached.
This is, of course, only if the director has not tried to influence the Administrative Law Judge. In which case, many legal issues could be raised – more on that in question three. Back to the ethics involved, it would be very important if the director were to try and be ethical about the issue. He/she should give the appearance of ethical procedure. One way this could be done is that a recommendation could be made for rulemaking to be in a formal format. In addition, he/she should be very careful to limit ex parte contacts between himself and his former business associates. Under no circumstance should the director have a conversation of any nature involving this case. Under the circumstance that the drug was or was not approved, the case could go before Judicial review. There, any appearance of unethical behavior could not only be evidence to support a plaintiff’s claims, but even cause a de novo review. Even worse, it could be food for the media and a public scandal.
The second question is if the director were to leave and become a superior for a firm. I don’t see this as a big threat. The new director would have his new alliances. It would seem like any influence that the former director would have should be kept to a minimum in order to preserve the rulemaking, especially if the findings were on the firm’s behalf. As a company representative, he should not personally make ex parte contacts with the agency and obviously not approach the ALJ. The government controls the behavior described above through various ways. The first way is to keep the final decision maker, the ALJ, separate from the mainstream agency.
The text is in accordance with the procedural rules outlined in the Administrative Procedure Act (APA). The situation of ex parte contacts or off-the-record meetings is problematic. They are primarily demonstrated in the format of informal rulemaking, so it would be a good policy to make high-profile cases good situations to place on the formal rulemaking track. Another controlling influence is the three acts that impose public scrutiny of the agency’s behavior during rulemaking. The Freedom of Information Act requires the government to disclose specific records to the public upon request.
The Government in Sunshine Act requires that every portion of every meeting headed by a collegial body be open to public observation. The Regulatory Flexibility Act of 1980 requires an analysis to determine if the financial burden of a new regulation outweighs the benefits for small businesses. If so, less costly alternatives are given. The two extreme cases of the Director are not as common as individuals of less power but sometimes more influence, such as an ALJ. The government has made efforts to protect society from insider manipulations, but it is often unavoidable due to the power of agencies. Perhaps the constant attention paid to the Federal Register by public groups and environmentalists is what protects us the most.
