February 4, 2023

When it comes to ethics, the devil is in the details.

At least for former Home Secretary David Bernhardt, who has been accused of ethical breaches in dealing with the Westlands Water District during his tenure. According to a Jan. 19 report from the Office of the Inspector General of the Interior Department, Bernhardt, who is from Rifle, Colorado, technically did not commit any ethical violations when it came to the letter of the law.

“It shows how swampy Washington can be,” says Aaron Weiss, associate director of the Center for Western Priorities. “When a smart, accomplished lobbyist and attorney comes in with an agenda and knows what questions to ask to stay on the right side of the ethics laws, you can do a lot of harm, or I think a lot of help, to your former clients.”

Bernhardt represented Westlands in litigation and lobbying before being confirmed as Deputy Home Secretary in 2017. Shortly before working for the federal government, Bernhardt was the head of Brownstein Hyatt Farber Schreck’s Washington, DC office, where he was based in Denver. His clients included many in the oil and gas, power and water industries.

When Bernhardt took over as secretary in 2018 after his boss Ryan Zinke resigned following multiple scandals involving runaway spending and conflicts of interest, Bernhardt was working on matters related to the California-based Central Valley Project, from which Westlands receives water.

The inspector general checked whether Bernhardt helped Westlands secure a cheap, permanent contract with the CVP without disclosing his potential conflicts of interest.

“We have not substantiated the allegations,” the report said. “Rather, we found that to the extent that Mr. Bernhardt gave directions, guidance or advice regarding CVP matters, his actions involved political decisions that were within Mr. Bernhardt’s official discretion.”

Despite his involvement with Westlands, Bernhardt was allowed to work with the CVP for two main reasons. First, government entities like Westlands don’t count as past customers under the ethics pledge because the pledge excludes any “executive agency or other federal, state or local government entity.”

Second, Bernhardt did not concern himself with specific Westlands-related matters because his work with the CVP and the California State Water Project was broadly focused on the reduced availability of water in California.

“He didn’t have to work on specific issues affecting Westlands to make and shape important decisions that would help Westlands,” says Weiss. “He’s smart enough – he’s busy enough with the Home Office – to know exactly what levers to pull to help Westlands without ever having to meet with them.”

To Weiss, the inspector general’s report reads like a manual for others hoping to get away with unethical conflicts of interest at the federal level.

“Technically it might be legal, but that doesn’t make it right,” says Weiss. Bernhardt did not respond to a request for comment.

From the start of his tenure at the Home Office, Bernhardt’s ethics were questioned, with Zinke coming under fire for staffing the ministry with staff with ties to the oil and gas industry, including Bernhardt.

When Bernhardt took over in 2018, his previous lobbying work came under criticism during his confirmation hearing. He told senators at the hearing that he no longer intended to back down from decisions that might affect former clients once the two years he was required to do so expired in August of that year, arguing that doing so would put him in jeopardy would prevent him from fulfilling many functions of his job.

At the time, Bernhardt had the most potential conflicts of interest of any of President Trump’s 31 cabinet members, according to the Center for American Progress. Twenty of his former clients had been actively lobbying the Home Office for the past year. Now it turns out that Westlands was not, by definition, one of those customers.

Weiss says it’s not encouraging that the inspector general didn’t find any technical misconduct. Rather, it shows that Bernhardt was smart enough to circumvent the rules.

“What it found was a guy who knew the system to circumvent his ethics obligations in a way that matched the letter of the law in his ethics pledge, while clearly violating the spirit of those obligations,” he says. “For me, the most interesting thing about this report was an acknowledgment that before David Bernhardt was ever appointed assistant secretary, he received acknowledgment that he could work in California waters.”

The report details Bernhardt’s questions about whether he should withdraw from all CVP affairs or just Westlands. Bernhardt had discussed the potential reach of the conflict of interest during a conversation he began with the Home Office prior to his appointment with the ethics officer of the deputy-designate agency.

Weiss predicts this won’t be Bernhardt’s last national political influence, especially the next time a Republican becomes president.

“David Bernhardt came out a lot more valuable to his customers than he went in, and that was always the goal,” says Weiss. “You can see the difference between David Bernhardt and his predecessor, Ryan Zinke: Zinke was a corruptible fool who got caught trying to make money on the job. David Bernhardt has always been way smarter than that. He would never invite the CEO of Halliburton over to try and turn it into a brewpub. He just wanted to do what he had to do to help his customers, knowing that the moment he left he would be thoughtfully rewarded for it.”

A clean slate from the inspector general can’t hurt either.

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