Book Excerpt 1: Fiduciary Duty
<br>This is the first of a series of posts that will pull out valuable
pieces from my new book <a href="http://www.cityethics.org/ethics%20book" target="”_blank”"><i>Local Government
Ethics Programs<i></a>.<br>
<br>
One reason that government ethics is described in terms of
obligations is that government officials have a fiduciary duty or
obligation
toward the community for which they work (and which, in some cases,
elected
them). Government officials have a special obligation toward the
community,
usually referred to as “the public,” that is unlike any other
obligation.
Government ethics deals with conflicts between this special
obligation and an
official’s other obligations.<br>
<br>
Government ethics codes don’t
usually use the term “fiduciary duty.” However, the first
substantive provision
in Chicago’s ethics code reads, “Officials and employees shall at
all times in
the performance of their public duties owe a fiduciary duty to the
City.” Note,
this duty is owed to the city, not to the city government.<br>
<br>
Although often referred to as a
fiduciary duty, government officials’ over-riding obligation is
different from
that of a trustee to a beneficiary, which is the most common use of
the term
“fiduciary.” The difference is inherent in our form of government.
In many
forms of government, officials are responsible to a king or a
dictator. Even in
some democracies, such as Japan, government officials do not feel
the same
sense of obligation to the public. There is an old saying in Japan,
kan son
min pi, literally “government personnel are respectable,
non-government
personnel are not respectable,” or “respect government officials,
don’t respect
the public.” [Tomofumi Oka, “Self-Help Groups in Japan: Trends and
Traditions”
in Francine Lavoie et al, Self-Help and Mutual Aid Groups:
International and
Multicultural Perspectives (Haworth Press, 1994), p. 91, quoted in
<i>The
Economist</i>, October 16, 2010, p. 51] American democracy requires that
our
government officials respect and be responsible to the public.<br>
<br>
Another way of understanding an
official’s fiduciary duty is by looking at it from the point of view
of the
public. The public elects representatives who spend the public’s
money and make
decisions about their community that affect their lives. The
American version
of this representative system can work only if the public has
confidence that
its representatives, and those hired by its representatives, are
seeking to benefit
the community rather than themselves and those with whom they have
special
relationships.
<br>
<br>
We cannot actually know much about
the character of those who work in our local government, and we
cannot expect
our representatives, or those they appoint to office, to be as
competent as we
would like, or have as good judgment or vision as we would like, but
we can at
least expect them not to misuse their office to benefit themselves
or those to
whom they have personal obligations that conflict with their
obligations to the
community.
<br>
<br>
The duties and expectations that
form the relationship between local officials and their community
lie at the
center of our form of government. These duties and expectations are
supported
and enforced by government ethics programs and, when there is
bribery or
embezzlement, they are enforced by the criminal justice system.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
---