Bridging the Gulf Between Administrative and Government Ethics

Anonymous

Wed, 02/27/2013 - 09:49

Advisory Opinions

I have done a poor job in this blog covering administrative ethics,
that is, the field of study involving the professional conduct of
public administrators. Writers on administrative ethics have done a
poor job of covering government ethics, that is, the field of study
involving conflicts of interest. Although the two fields overlap,
they exist in mostly separate worlds. For example,
rarely does an administrative ethics professor show up at a Council
on Governmental Ethics Laws (COGEL) conference, and my work (among
others') has been totally ignored by administrative ethics
professors. 
 
Government ethics is unusual in having
very limited representation in academia. Instead, it is taught by
professors who consider it essentially a small corner of their field,
which is administrative ethics. And to the extent government ethics
courses are taught, they deal primarily with the federal government,
even though most public administrators work in state and local
governments and the federal ethics program does not provide a good
example for other levels. 
 
I find this state of affairs disheartening. That is why I was
excited to learn that, in the second edition of his book <a href="http://books.google.com/books?id=dc2-TlTW6BMC&printsec=frontcover&sourc…; target="”_blank”">Ethics

Management for Public Administrators: Leading and Building
Organizations of Integrity</a> (M.E.

Sharpe, 2012), Donald C.
Menzel added a new chapter, "Local Government Ethics Management in
Action." 
 
But what I found in the book was hostility to conflict of interest
programs. My goal in this series of blog posts is to try to
understand this hostility, and to propose that the
disciplines respect and responsibly critique each other, rather than
ignoring and, occasionally, showing hostility to each other. What we
need is a dialogue and mutual respect.

Menzel sums up his view of local government conflicts of interest
programs in the conclusion to his book:<blockquote>

[A] compliance approach to building an organization of integrity is
not sufficient. Indeed, in its most pernicious form it can lead to
the lowest common denominator that if it's legal, it's ethical. This
low-road approach will never lead to an ethical workplace. Rather,
the workplace becomes one in which rule evasion and dodging go hand
in hand with a "gotcha" mentality. The high road of aspirational
ethics must be taken.</blockquote>

What Menzel means by a "compliance" approach is not what government
ethics professionals call "compliance." We see "compliance" as an
essentially corporate approach to ethics, based on standards and
auditing, intended to comply with the Federal Sentencing Guidelines.
Compliance in local governments is accomplished by auditors and
inspectors general. 
 
Menzel sees "compliance" as regulating employees' conduct through
(quoting Carol Lewis) "a largely prescriptive, coercive, punitive,
and even threatening route … to spur obedience to minimum standards
and legal prohibitions." He refers to Chicago's ethics program as a
"compliance strategy" and applies this term similarly to its "many
city- and state-level counterparts." In other words, what I write
about is, in his view, a "compliance" or "low-road" approach (the
term "low road" appears to have originated with John Rohr in his
important 1978 book <a href="http://www.amazon.com/Ethics-Bureaucrats-Values-Second-Administration/d…; target="”_blank”">Ethics
for Bureaucrats: An Essay on Law and Values</a>). 
 
Different Goals 
The essential question is, "Approach to what?" Note that the
quotation above begins, "a compliance approach to building an
organization of integrity." In his conclusion, Menzel defines "an
organization of integrity" as a workplace "where individuals treat
each other with respect, take pride in their work, care about one
another, promote accountability, and place the public interest over
individual and organizational self-interest." 
 
These are all wonderful things, but a conflicts of interest program
seeks only to deal with the last of these elements of an
organization of integrity. That does not make it a failure or "low
road." It simply has far more limited goals. You cannot fail at
doing something you do not seek to do. 
 
Gotcha! 
As for rules, Menzel seems to feel that a rules-based ethics program
is purely legalistic and focused on enforcement. This is an accurate
description of poor ethics programs, programs that were created and
are run out of ignorance, that do not appreciate the value of
training, advice, and disclosure. But that isn't what he is talking
about. 
 
In any event, it isn't a gotcha "mentality" that is the problem.
After all, it is local legislators themselves who draft most ethics
codes. They hardly have the mentality of setting themselves up for
an unfair fall. When ethics programs are created or reformed by
referendum, it is only because local legislators have failed to act.
Gotcha! is not the mentality of those who create ethics programs,
it's how high-level officials often view ethics programs when ethics
rules are enforced against them. 
 
The problem isn't a gotcha mentality, but gotcha provisions and the
failure to understand that vague, aspirational ethics provisions can
catch officials who could not possibly know that they were violating
these rules. This is <a href="http://www.cityethics.org/content/dc-ethics-boards-opinion-needs-rewrit…; target="”_blank”">what

occurred recently in Washington, DC</a>, where the new ethics
board applied aspirational rules to a council member. 
 
And yet Menzel calls the aspirational approach the "high road."
Again, the high road to what? To the extent Menzel refers to the
aspirational codes of professional administrator associations such
as the ASPA and ICMA, the aspirational approach is primarily about
guidance concerning professional conduct. This is a wonderful
complement to government ethics programs, but it has little to do
with them. Aspirational professional codes are only to a minor
extent about conflicts of interest, rarely involve enforcement, and
do not apply to elected or most appointed officials, or contractors
or developers, who are the principal people a government ethics
program seeks to train, advise, require disclosure from, and enforce
the rules against. 
 
There is no high road and low road. There is no aspirational vs.
compliance. There are different roads to different destinations,
which coexist in harmony just as well as a local road and a highway.
Government ethics practitioners want everything that administrative
ethics professors want. But they are just driving their pickup truck
along a local road, trying to get officials to deal responsibly with
their conflicts of interest. It's officials themselves who sometimes
promise to create an ethical organization simply through a
government ethics program. Government ethics practitioners have
their hands full with training, advice, disclosures, and
enforcement. They can contribute to, but not manage, a healthy ethics environment. 
 
Menzel's View of Local Government Ethics Programs 
In his new chapter, Menzel does no more than look fleetingly at conflicts of interest programs in a number of
local governments: (in order) Tampa, Chicago, New York City, Palm Beach County, King County WA,
Salt Lake County, Cook County, Kansas City KS, and Jacksonville. 
 
It's worth repeating the title of this chapter: "Local
Government Ethics Management in Action." What is ethics management? It is the creation and maintenance of
organizations of integrity. Since local government ethics programs
do not seek this goal, it is likely that they will be seen to fall
short of it. Which is what happens. 
 
In what is mostly a descriptive chapter, the Wyandotte County-Kansas
City, KS program gets the most amount of praise from Menzel. Why?
Because its training goes beyond "the typical, narrow 'gotcha'
approach"; its innovative aspects include an ethics pledge and oath,
obligating employees to treat their office as a public trust
(pledges and oaths are common, not at all innovative); and it takes
an "integrated approach," which includes independence,
confidentiality, trust, and "the promotion of good and honest local
government rather than a 'gotcha' approach to dealing with
misconduct." It is the only program Menzel finds has been
successful, even though he admits that it is very hard to determine
an ethics program's success. It also happens
to be the only program whose administrator for many years was a
professor of administrative ethics. 
 
It is when he talks about New York City that the gulf between
Menzel's view and mine appears the widest. Although far from
perfect, NYC's ethics program is, in my view, the best we have. Mark
Davies, the conflicts of interest board's executive director, has
done an incredible job putting together a program that is focused on
prevention of ethical misconduct through training and advice
(Disclosure: I sat on a panel during a training session last year; no payment was made, even for expenses). 
 
But here is how Menzel introduces the program, starting with a short
quotation from Frank Anechiarico and James B. Jacobs' <a href="http://books.google.com/books?id=okzVXOhqCwUC&printsec=frontcover&dq=pu…; target="”_blank”">The
Pursuit of Absolute Integrity: How Corruption Control Makes
Government Ineffective</a> (Univ. of Chicago, 1996). The quotation
refers to the most recent period of ethics reform as the "panoptic era," an era in which:<blockquote>

public employees are "akin to probationers in the criminal justice
system." The end result is an ethics management system run amok. The
pursuit of absolute integrity, a system in which everyone is
presumed guilty of some wrongdoing, turned New York City into an
ungovernable enterprise.</blockquote>

After this hyperbole, and his refusal to say whether he subscribes
to it or not, Menzel goes on to write a short description of the
program. His introduction leaves a bad taste in one's mouth, as does
his conclusion: "Does New York City take ethics management
seriously? You decide." Kansas City's description ends, "Is the
unified government marching to a different drummer? You decide." 
 
And then the chapter concludes, "nearly all [the ethics programs]
share a strong legal compliance orientation; there are exceptions,
however, with the Unified Government of Wyandotte County and Kansas
City, Kansas, being the most notable." It's clear that the author
has decided. 
 
Menzel also likes the former Jacksonville code "with its emphasis on
aspirational goals." He sees it on a "forward-looking path toward
recognizing that ethical governance requires more than laws and
penalties." As it happens, Jacksonville has tossed away this
"forward-looking" ethics program, and now has a far better ethics
program with more authority and more independence. It still has the
same ethics officer (City Ethics' president, Carla Miller) who
provides the same advice and training. And it was she who led the
change. The program's goals are more than just aspirational.
Aspirational is fine, but as Menzel says about the compliance
approach, it is not enough. 
 
Where the Hostility Comes From 
I think the problem Menzel has with local government ethics
programs, and the hostility he seems to feel, lies in (1) asking of
a government ethics program something it does not seek and is not
designed to provide; (2) believing that what may work for
administrative professionals will work for politicians, board and
commission members, and others without a public administration degree; (3)
not recognizing the limitations individuals have making decisions on
their own about their conflict situations, even if they've had such things as
character training and have a good "ethical compass"; (4) confusing
enforcement with "gotcha," and not recognizing how "gotcha"
aspirational provisions can be, even if there is no enforcement
mechanism; and (5) a lack of respect for those whose work is not
focused on administrative ethics concerns such as ethical
leadership, values and commitments, and building integrity. 
 
Ironically, while I and the local government ethics practitioners I
talk with see government ethics as dealing responsibly with conflict
situations, that is, a professional rather than integrity approach,
administrative ethicists such as Menzel ignore this professional aspect of
government ethics programs, despite their own focus on what
professional administrators should do and be. Something as crazy as
this could only come from the fact that the two groups effectively
have different ideologies, based on different experiences.
One group comes out of public administration theory and practice.
The other group comes out of practical problems involved in getting
officials to deal responsibly with their conflicts of interest. 
 
Those who believe that ethical leadership and professional pride and
integrity are what matters most are focused on professional
administrative values. Those who believe that guidance and the
threat of enforcement are what matters most are focused on trying to get
mostly non-professionals to act professionally. Both are important,
and they are completely complementary. But I don't get the feeling that both
groups feel this way. 
 
I would never think of referring to administrative ethics as the
"low road." Despite what Menzel says, conflicts of interest programs have more than
laws and penalties. There are poor programs that do
not, and I criticize them. But the great majority of local
governments have no program at all, or nothing but weak enforcement. They
need guidance. Ethics Management for Public Administrators, with its
new chapter on local government ethics programs, provides almost
none of this guidance. And my book, which provides a huge amount of
this guidance, is of no interest to Mr. Menzel nor to his
colleagues, at least as far as I have seen. 
 
I have great respect for <a href="http://www.cityethics.org/TopTenBooks" target="”_blank”">those writing about
administrative ethics</a>, for the <a href="http://www.cityethics.org/mc/gi/aspirational" target="”_blank”">professional
association ethics codes</a>, for <a href="http://www.cityethics.org/search/node/%22ethical%20leadership%22" target="”_blank”">the
need for ethical leadership</a>, for those who are teaching public
administration students to be honest, respectful, and accountable.
But these students also need to be taught about the elements of a
conflicts of interest program in a way that helps them institute such
programs in their cities, counties, and states. 
 
Let me throw out for mutual consideration one topic that is not
considered in Menzel's book. I assert that the most important
element of a local government ethics program is the provision of
timely ethics advice by an independent, trained ethics adviser. I do
not believe that even the best ethics training or best ethical
leadership can overcome an individual's blind spots when it comes to
dealing responsibly with his conflict situations. Ethics training
can, however, educate officials in recognizing ethics situations so
that they can seek advice. I also assert that ethics advice is the
principal way in which a government ethics program can go beyond the
legal into the ethical. I explain this at length in <a href="http://www.cityethics.org/files/lgep1-0%20-%20Robert%20Wechsler.htm#Gov…; target="”_blank”">the

Advice section of my book</a> Local Government Ethics Programs. 
 
Do you agree or disagree, and why? Please put your views in the form
of a comment to this post, and help get the dialogue started. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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