Book Excerpt 1: Fiduciary Duty

This is the first of a series of posts that will pull out valuable pieces from my new book Local Government Ethics Programs.

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.

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.

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 The Economist, October 16, 2010, p. 51] American democracy requires that our government officials respect and be responsible to the public.

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.

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.

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.

Robert Wechsler
Director of Research-Retired, City Ethics

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