Does Pam Karlan have an ethics problem?

Pamela Karlan is a brilliant and distinguished law professor at Stanford University. Until this month, she served in a high-level Justice Department position — Principal Deputy Assistant Attorney General for Civil Rights.

During her 16 months or so at the DOJ, Karlan continued to be paid by Stanford. Reportedly, she received more than $1 million from Stanford in this period of time, with the DOJ sending her imputed government salary of around $180,000 to the University.

The American Accountability Foundation contends that it was unethical for Karlan to receive pay from Stanford while serving in the government. It filed a Freedom of Information Act request with the DOJ regarding Karlan’s employment.

On July 1 of this year, Karlan resigned from the Department. This was one business day before the DOJ delivered documents to the American Accountability Foundation responsive to the FOIA request. Originally, Karlan was going to remain in her job at the DOJ until at least August 22, according to this report.

Karlan’s conduct raises at least two questions. First, did she violate government rules by being paid more than $1 million dollars by Stanford while she worked at the Department? Second, was she involved at DOJ in matters Stanford had an interest in, such that a conflict of interest arose?

It looks to me like the answer to the first question is “probably not” and that answer to the second is “very possibly.” However, I’m not an expert in legal ethics, and certainly not an expert in government rules on outside employment. I write this post as much to raise questions as to answer them.

Let’s turn first to government rules on payment by other employers. 5 C.F.R. § 2635.804 provides:

The outside earned income of other non-career officials [those who aren’t presidential appointees] in positions classified above GS-15 is limited to 15% of the salary for Executive Level II.

I believe this provision covers Karlan’s job. (Presidential appointees aren’t allowed to receive any income for outside employment.) And Karlan’s Stanford salary far exceeds 15% of a government Executive Level II salary.

However, Karlan came to the DOJ pursuant to the Intergovernmental Personnel Act Mobility Program (IPA). It provides for the temporary assignment of personnel between the federal government and colleges and universities, among other institutions.

I assume, but do not know for certain, that under the IPA, Karlan could continue to be paid in full by Stanford while working for the DOJ as long as she did not also pocket a government salary. Apparently, she did not. Instead, as noted, the DOJ reimbursed Stanford for an amount equal to her imputed DOJ salary — around $180,000.

It seems likely, therefore, that Karlan did not violate government rules simply by virtue of being paid by Stanford while at the DOJ.

What about a conflict of interest, though? The Civil Rights Division is involved with a number of programs and issues in which Stanford has a clear interest. One is Title IX, which prohibits sex-based discrimination by colleges that receive funding from the federal government, which Stanford certainly does. Another is race-based college admissions, which Stanford aggressively indulges in .

It’s likely that Karlan was involved in DOJ deliberations on both issues. She was, after all, the Civil Rights Division’s principal deputy head. And she’s a brilliant lawyer, more able and intelligent than her nominal boss, Kristen Clarke.

As to race-based admissions, moreover, it requires no speculation to conclude that Karlan was involved at DOJ. Her involvement is a matter of public record.

Last December, the Justice Department, at the invitation of the U.S. Supreme Court, filed an amicus brief on the question of whether the Court should grant cert in Students for Fair Admissions Inc. v. Harvard. This is the case in which Asian-American students allege that Harvard violated their rights by denying them admissions because of their race.

The DOJ argued that the Court should not grant cert. The Court granted it anyway and will hear the case this upcoming term.

Pam Karlan’s name appears on the DOJ’s brief, right below that of Elizabeth B. Prelogar, the Solicitor General of the United States. (Kristen Clarke’s name is not on the brief.) There’s no doubt, therefore, that Karlan worked on this matter.

Stanford has race-based admissions policies similar to Harvard’s. Stanford’s ability to continue using these policies will very likely be affected by the Court’s decision in the Harvard case. Thus, Stanford’s interest in that case is clear — so clear that Stanford filed an amicus brief in the Harvard litigation.

For Karlan, an employee of Stanford, to participate in the Justice Department’s deliberations about what position to take in a case where Stanford has a clear interest, and has participated, would seem to raise a serious conflict of interest. How can the public be fully confident that Karlan’s input at DOJ in this matter was not affected by the interests of an employer who was paying her lavishly?

Again, I’m not an expert in legal ethics. But at a minimum, the facts here raise a question that should be explored by those who possess that expertise.