Government Ethics Is Not About Character, But About Making Decisions in a Professional Manner

One thing I've failed to do in this blog is sufficiently emphasize that making ethical decisions in government is not primarily about being a good, ethical person, as most people seem to think. Essentially, it is the same as making other decisions. As I  recently wrote, "with effective training, in an ethical environment, government ethics should be just another professional routine."

Dealing Responsibly with Conflicts of Interest Is Professional
Lawyers have it right. They call their ethics provisions "Rules of Professional Responsibility." You are not necessarily a bad person because you fail to act ethically, but you are definitely unprofessional. The professional thing to do, in possible conflict of interest situations as in other situations, is to act responsibly. This part of it I've said again and again:  the central act in government ethics is dealing responsibly with conflicts of interest.

One of the biggest problems that arise when acts of ethical irresponsibility occur is that they are treated as scandals, as the result of character flaws. This is true not only of the news media (including, too often, this blog) and of citizens, but of officials themselves, even the lawyers, who should know better.

Rarely do you hear officials argue that they went through a professional ethics decision-making process and simply made a misjudgment. The closest they usually get to this is saying that they asked a local government attorney and were told they were acting legally. In other words, they treat it as purely legal decision-making and pass the responsibility off onto somebody else.

The question to ask when an official says this is, If the decision involved a financial or engineering or management decision, in which law was one aspect of the official's professional decision, would they place all the responsibility on the lawyer? Okay, maybe they would try, but they would look ridiculous.

The Satanic Word "Ethics"
There are several culprits here, but the biggest one is that satanic word "ethics." We all know (or think we know) that ethics is about being good or bad. An unethical person is a bad person or a person acting badly. This isn't true. Ethics is a discipline that deals with duties and obligations to others. Note that all those key words -- discipline, duties, obligations -- are about responsibility, not about being good or bad.

Unfortunately, there's little we can do about the misperceptions that surround the term "ethics" other than to educate local government officials and employees, the media and the public, something which is scarcely being done at all. That's why I prefer the term "conflicts of interest" as used in New York City's Conflicts of Interest Board. But this sort of change is an uphill battle, no matter how reasonable it may appear.

I'm Not a Professional, I'm a Good Person
Another culprit here is the fact that most local elected and appointed officials are not professional politicians or administrators. They think of themselves as volunteers, as people sacrificing their time and expertise for the public interest. They also often think of themselves as party members (part of a team), as pro- or anti-development people (or people with other basic policy goals), and as people getting involved in the community to indirectly help their businesses or professions. They think of themselves as good citizens who don't have ethical problems. This is a big ethical problem.

Professionals in Other Fields
Many local elected and appointed officials are professionals, however, and their professions have ethics codes on which they've been trained. Others work for large businesses that have ethics codes and training, as well. These individuals have a basic understanding of conflicts of interest.

But the largest group, especially on local legislatures, consists of lawyers, who take an overly legalistic approach to conflicts of interest, seeing ethics rules as maximal instead of minimal (that is, anything clearly not illegal is okay). This legalism affects not only them, but most of the other officials, because people tend to defer to lawyers in areas where there are laws. Therefore, dealing responsibly with conflicts of interest becomes a legal interpretation exercise. There appears to be little room left for professional judgment.

But the lawyers are wrong. Local government ethics is primarily about professional judgment, and ethics provisions are minimal, that is, they describe the minimal behavior expected of public officials, the place to start from in making professional judgments.

I Don't Need Ethics Training
The misperception of "ethics" is also one of the major reasons there is so little local government ethics training (and why most of what there is focuses on legal provisions rather than responsible decision-making). Most people believe that you can't teach people to be good or bad. But that's beside the point. You can train people to recognize and take into account possible conflicts of interest -- theirs and others' -- as part of their ordinary decision-making and their interactions with colleagues, consultants, contractors, lobbyists, and applicants. You can train people to be responsible and professional. You can even get people to take the same pride in their conflicts decision-making as they do in the other skills they use in their work.

Ethics Is Personal, But Not in the Way You Think
But isn't ethical decision-making also personal? After all, isn't the essential test in government ethics whether you'd like your conduct to appear in a front-page headline? Yes, this personal side of ethical decision-making does exist, but is it any different from the personal side of other decisions? Would you like a front-page headline about your decision to use the wrong materials to pave a road, or your decision not to do a background search on a child molester you hired to work in an after-school program?

One thing personal about ethical decision-making is the personal benefit you might get by participating in a decision. But the rule is pretty simple:  if there's a personal benefit, don't participate. And the policy behind this rule is equally simple:  letting your personal interests appear to interfere with the public interest undermines public trust.

The real personal thing about ethical decision-making is having the strength of will to act responsibly when it seems that you have something to gain by acting irresponsibly, and having the imagination to recognize that in the long run you may lose out far more by acting irresponsibly than you will by acting responsibly and sacrificing a potential benefit. That's why it's important (and responsible) to discuss possible conflicts with a knowledgeable, neutral person (not a political ally who happens to be a lawyer). In many cases, we need to be told, not only that it is irresponsible to accept the personal benefit, but that the whole thing may blow up in your face, so don't do it.

The other thing about being a responsible professional in a conflict of interest situation is that responsible professionals see such situations as opportunities to teach others what to do in such a situation, so that it is easier for them to recognize what is irresponsible and to act responsibly. There's also that minor issue of public accountability, which is the heart of democracy.

Justifying the Irresponsible Handling of Conflicts
There's one more major culprit, which is extremely personal, but not about being good or bad or even responsible:  our ability to justify our behavior. The justifications for ignoring conflict of interest rules include:

I deserve some benefit for all the volunteer work I do (or the lousy pay I get).
I'm not putting money in my pocket like the others are.
It's just a technical conflict, not something bad.
They knew I was deeply involved in this business when they appointed (or elected) me.

There are also justifications for high-level officials who provide no ethical leadership, who say and do nothing when their colleagues have conflicts they don't deal with responsibly:

It's not my responsibility.
I'm not a stool pigeon.
I'm better than the guy they'd put in my position if I spoke up.
I have to put my family first.

Other justifications are strewn throughout this blog. The irresponsible handling of a conflict of interest is far more often accompanied by a justification than it is committed by a bad person. Such justifications are unprofessional and irresponsible in the most basic way:  they are just ways of saying, I'm not responsible for acting responsibly.

Robert Wechsler
Director of Research-Retired, City Ethics

---