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The Consequences of Academic Noninvolvement in the Reform of Government Conflicts of Interest Programs
Tuesday, October 7th, 2014
Robert Wechsler
An essay of mine has appeared in the new
issue of the journal Public
Integrity, a special issue entitled "Changing of the
Guard: The 75th American Society for Public Administration
Anniversary Symposium: Visions and Voices of Ethics in the
Profession" (Fall 2014, Vol. 16, No. 4). Since the journal is
published commercially, I am not permitted to share my essay with you. So
I will do the next best thing: review it and expand on what I
wrote (without all the details and the academy-speak I was required to
employ).
The title of the essay is "Missing Out: The Consequences of Academic Noninvolvement in the Reform of Government Conflicts of Interest Programs." The abstract is as follows:
The essay begins with an extended quotation from Mark Davies, Executive Director of the New York City Conflicts of Interest Board:
The Impulses for This Essay
Two things prompted me to write this essay. One was the recognition that academics in the related field of campaign finance have been extremely involved in reform efforts at every level. Why, I wondered, are things so different in the field of conflicts of interest? I hoped that a consideration of this question might lead to some sort of valuable change.
The second thing that prompted me to write it was the fact that I essentially have no competition, no one to argue or agree with. It would be nice if someone else were to write a book, or even some articles or blog posts, about government ethics at the local or state level. It would be nice if there were dialogue rather than monologue.
The Essay
The first section of the essay looks at the very limited involvement of academics in several of the recent local government ethics reform efforts. What involvement there was came primarily from law school professors rather than from public sector ethics professors.
The second section of the essay looks at other involvement in government ethics, including op-ed pieces, testimony, ethics code drafting, and the literature on best practices. Again, there has been very little of this involvement.
Reasons for Noninvolvement
The heart of the essay is the section on the reasons for this noninvolvement. The first reason is one that did not appear on my first list, before I interviewed a number of individuals, primarily academics who have written about public sector ethics. That reason is money. There simply is very little money to be made in the field of conflicts of interest, at least in the United States (there is more money to be made in this field overseas). Few American state and local governments, or good government organizations, are willing to pay for professional ethics consultants. If they do seek such advice, they generally seek it from lawyers, often with no background in government ethics, or sometimes from business ethicists.
The next few reasons involve the nature and interests of public sector ethics professors. The first generation of public administration professors came primarily from philosophy or theology, rather than government or law. This explains their preference for principles over laws, and their lack of interest in the reform of ethics laws, in ethics regulation and enforcement, in the drafting of advisory opinions, in the critiquing of relevant judicial opinions, and in such issues as confidentiality, the independence of ethics programs, the language of ethics provisions, and enforcement procedures. The most important conflicts of interest issues are more exciting to law professors than to the public administration and political science professors who teach public sector ethics courses.
Since most such courses are part of public administration programs, their focus has been on administrators rather than on all government officials. This is problematic, because government ethics problems involve elected officials more than appointed administrators. Elected officials, who lack the professional identity public administrators have, need ethics guidance more than do administrators. But public administration professors do not provide this guidance and have little interest in programs that primarily involve elected officials.
Political science professors, on the other hand, are more interested in ethical questions involving policy than in ethical questions involving conflicts of interest. Therefore, conflicts play a small role in public sector ethics textbooks and in the vision of what professors consider important in public sector ethics.
Because public administrators do have a professional identity and professional ethics codes (and rarely hold the sort of outside jobs that create so many conflicts), public administration ethicists focus on the personal ethical decision-making of these administrators. They ignore the blind spots that are such serious obstacles in decision-making regarding conflicts of interest. In fact, this belief in ethical decision-making acts as a blind spot that prevents many academics from appreciating the value of ethics training, ethics advice, disclosure, and the guidance provided by clear ethics provisions.
All of these reasons for noninvolvement concern interests, priorities, beliefs, skills, and incentives. All of these reasons are, therefore, understandable and acceptable. And these reasons would appear to be more than enough to ensure the noninvolvement of public sector ethics professors in conflicts of interest reform and the determination of best practices.
Prejudice Against Conflicts of Interest Programs
However, there is another reason for this lack of involvement that is neither understandable nor acceptable, that has hardened into something akin to prejudice. For decades, public administration ethicists have criticized not actual conflicts of interest programs in government, nor the best practices government ethics practitioners have recommended. Instead, they have created, and then criticized, a straw man version of these programs. By this I mean that they have said these programs are all about compliance with laws when, in fact, the most important elements of a government ethics program are training, advice, and disclosure. They have created a false distinction between law and principle, and come out against law and in favor of principle.
Several public sector ethics professors have referred to government ethics programs as the "low road" or "vulgar," and to "integrity programs" as the "high road." In fact, a 2009 lecture somewhat critical of this approach, by the dean of public administration, George Frederickson, was entitled "Searching for Virtue in the Public Life: Revisiting the Vulgar Ethics Thesis." This language is neither descriptive nor analytical, but rather prejudicial.
As I say in the essay,
The result has been that conflicts of interest programs have fallen between the cracks in terms of teaching and in terms of writing. These programs are only touched upon in public sector ethics classes in public administration and political science programs. Since these classes are common in these programs, law professors feel no need to cover the topic.
As for writing, besides my Local Government Ethics Programs (I am a former lawyer and not an academic), there are only two recent non-negative books about government ethics reform in the United States. One of them, on state ethics reform (2005), was written by a political science professor, Beth Rosenson, who had done work for Common Cause before joining academia; the other, written by a law professor, Richard Painter (2009), recommends many reforms to the federal executive branch ethics program, based on his experience as the president's ethics attorney.
The Consequences of Noninvolvement
The penultimate section of the essay looks at the consequences of academic noninvolvement in government ethics reform and the determination of best practices. The most serious consequence is the lack of guidance. The result is that there is little understanding of conflicts of interest in government and, therefore, there are no standards. Anything goes.
Not only does this lack of understanding lead to the institution of poor government ethics programs (or none at all), but it also leaves ethics commissions and their staff with nowhere to turn for the information they need to understand their work. Without this understanding, they make serious mistakes. The biggest mistake is to do nothing. If you don’t know what you’re supposed to do, you wait for something to happen, you are simply reactive. This is the case with the great majority of local ethics commissions.
A third important consequence of academia’s failure is that those who graduate with public administration, political science, and law degrees — that is, those most likely to become government officials in a position to affect the creation, administration, and reform of government ethics programs — learn almost nothing about conflicts of interest programs. My review of 28 online syllabi of public sector ethics courses showed that, among their many hundreds of assigned and recommended readings, not one included an essay by Mark Davies, the most important writer on conflicts of interest programs and the only one who has set forth a program’s essential elements in a clear, readable fashion. Nor do the books most often used in these courses refer to Davies (other than one e-mail communication). Needless to say, there is also no reference to my book or my blog.
Other consequences include the ability of those who oppose government ethics to say almost anything they want, without having to worry that someone will point to scholarly works that show their statements to be questionable. And those who seek ethics reform cannot honestly say that their recommendations are considered best practices authorized by experts in the field. This makes it very easy to oppose effective ethics reform.
Recommendations
What can be done? is the question asked in the final section of the essay. What I propose is for public administration ethicists to decide whether or not they want to have anything to do with conflicts of interest programs. If they do, they should start talking about government ethics programs without prejudice and without insisting they are only about compliance. They need to work with practitioners, discuss issues openly online, as campaign finance-oriented professors do, and get involved with ethics reform efforts.
If they do not want to have anything to do with conflicts of interest programs and their reform, they should state this publicly. They should acknowledge the unfortunate selection of the word “ethics” in the name of nearly all such programs, and find a way to differentiate their work and their courses, so that other academics realize that the field is not being covered in courses, that this is a field in which they might make their mark (if not much money).
Since it is lawyers who draft conflicts of interest codes and administer conflicts of interest programs, and lawyers who find conflicts of interest issues most exciting, law schools would appear the best fit. But lawyers often have a hard time differentiating ethics from laws, and appreciating the importance of, not to mention being interested in, training, advice, and disclosure. They also sometimes have trouble differentiating legal ethics, which involves primarily professional conduct with respect to clients, from government ethics, which involves primarily fiduciary conduct with respect to citizens in a democracy. However, law professors could work these problems out if they wanted to. And they would be more likely to want to if the field were left to them.
I conclude the essay by saying that "The American Law Institute treatise on government ethics [currently being drafted] would be just the project with which to start taking on this role. It is the logical first step in bringing government ethics into law school curricula and law reviews, and starting a valuable discussion of best practices and an ongoing critique of conflicts of interest reform efforts."
Robert Wechsler
Director of Research-Retired, City Ethics
---
The title of the essay is "Missing Out: The Consequences of Academic Noninvolvement in the Reform of Government Conflicts of Interest Programs." The abstract is as follows:
When it comes to the reform of government conflicts of interest programs in the United States, everyone has been missing out due to the noninvolvement of academics. This paper seeks to explain the reasons for this noninvolvement, to consider the consequences, and to suggest what can be done.The Need for Best Practices
The essay begins with an extended quotation from Mark Davies, Executive Director of the New York City Conflicts of Interest Board:
“Virtually alone among laws enacted by government, an ethics law regulates the very persons who enact it. Not surprisingly, therefore, the road to ethics reform more often than not proves long, rocky, and arduous, fraught with obstacles along the way. Yet success requires only good faith and hard work – and a clear understanding of the purpose, principles, and structure of an effective ethics law. Without that understanding, legal drafters and lawmakers will invariably stumble from argument to counter-argument with little sense of direction toward an elusive goal. But with that understanding, every argument, counter-argument, provision, clause, and word can be weighed against a clear standard, significantly improving the odds of effective ethics reform.”I argue that a principal reason why this understanding does not exist is that academics in the field of public sector ethics have, for the most part, ignored government conflicts of interest programs and have not been involved in the creation or reform of these programs. The result is that there is no guidance, no setting forth of best practices, no "clear standards." It is especially sad that in recent years, when there has been a renaissance in local and state government ethics reform, this lack of understanding has led to a mishmash of laws and programs rather than conscious experimentation and an attempt to determine best practices.
The Impulses for This Essay
Two things prompted me to write this essay. One was the recognition that academics in the related field of campaign finance have been extremely involved in reform efforts at every level. Why, I wondered, are things so different in the field of conflicts of interest? I hoped that a consideration of this question might lead to some sort of valuable change.
The second thing that prompted me to write it was the fact that I essentially have no competition, no one to argue or agree with. It would be nice if someone else were to write a book, or even some articles or blog posts, about government ethics at the local or state level. It would be nice if there were dialogue rather than monologue.
The Essay
The first section of the essay looks at the very limited involvement of academics in several of the recent local government ethics reform efforts. What involvement there was came primarily from law school professors rather than from public sector ethics professors.
The second section of the essay looks at other involvement in government ethics, including op-ed pieces, testimony, ethics code drafting, and the literature on best practices. Again, there has been very little of this involvement.
Reasons for Noninvolvement
The heart of the essay is the section on the reasons for this noninvolvement. The first reason is one that did not appear on my first list, before I interviewed a number of individuals, primarily academics who have written about public sector ethics. That reason is money. There simply is very little money to be made in the field of conflicts of interest, at least in the United States (there is more money to be made in this field overseas). Few American state and local governments, or good government organizations, are willing to pay for professional ethics consultants. If they do seek such advice, they generally seek it from lawyers, often with no background in government ethics, or sometimes from business ethicists.
The next few reasons involve the nature and interests of public sector ethics professors. The first generation of public administration professors came primarily from philosophy or theology, rather than government or law. This explains their preference for principles over laws, and their lack of interest in the reform of ethics laws, in ethics regulation and enforcement, in the drafting of advisory opinions, in the critiquing of relevant judicial opinions, and in such issues as confidentiality, the independence of ethics programs, the language of ethics provisions, and enforcement procedures. The most important conflicts of interest issues are more exciting to law professors than to the public administration and political science professors who teach public sector ethics courses.
Since most such courses are part of public administration programs, their focus has been on administrators rather than on all government officials. This is problematic, because government ethics problems involve elected officials more than appointed administrators. Elected officials, who lack the professional identity public administrators have, need ethics guidance more than do administrators. But public administration professors do not provide this guidance and have little interest in programs that primarily involve elected officials.
Political science professors, on the other hand, are more interested in ethical questions involving policy than in ethical questions involving conflicts of interest. Therefore, conflicts play a small role in public sector ethics textbooks and in the vision of what professors consider important in public sector ethics.
Because public administrators do have a professional identity and professional ethics codes (and rarely hold the sort of outside jobs that create so many conflicts), public administration ethicists focus on the personal ethical decision-making of these administrators. They ignore the blind spots that are such serious obstacles in decision-making regarding conflicts of interest. In fact, this belief in ethical decision-making acts as a blind spot that prevents many academics from appreciating the value of ethics training, ethics advice, disclosure, and the guidance provided by clear ethics provisions.
All of these reasons for noninvolvement concern interests, priorities, beliefs, skills, and incentives. All of these reasons are, therefore, understandable and acceptable. And these reasons would appear to be more than enough to ensure the noninvolvement of public sector ethics professors in conflicts of interest reform and the determination of best practices.
Prejudice Against Conflicts of Interest Programs
However, there is another reason for this lack of involvement that is neither understandable nor acceptable, that has hardened into something akin to prejudice. For decades, public administration ethicists have criticized not actual conflicts of interest programs in government, nor the best practices government ethics practitioners have recommended. Instead, they have created, and then criticized, a straw man version of these programs. By this I mean that they have said these programs are all about compliance with laws when, in fact, the most important elements of a government ethics program are training, advice, and disclosure. They have created a false distinction between law and principle, and come out against law and in favor of principle.
Several public sector ethics professors have referred to government ethics programs as the "low road" or "vulgar," and to "integrity programs" as the "high road." In fact, a 2009 lecture somewhat critical of this approach, by the dean of public administration, George Frederickson, was entitled "Searching for Virtue in the Public Life: Revisiting the Vulgar Ethics Thesis." This language is neither descriptive nor analytical, but rather prejudicial.
As I say in the essay,
[T]he gap between the straw-man, purely rules-based picture of government ethics programs, and the practitioner’s focus on the guidance provided by ethics advice, can be seen starkly in a short paragraph from page 52 of Anechiarico and Jacobs’ book [The Pursuit of Absolute Integrity: How Corruption Control Makes Government Ineffective]: "Each year the [New York City] Conflicts of Interest Board responds to approximately four hundred formal requests for opinions and one thousand phone calls seeking informal confidential advice. This indicates that many public employees are anxious about and confused by the rules."Between the Cracks
To a practitioner, the number of requests for ethics advice is the most important indication of the success of the ethics program. After my stepson took the New York City ethics training course two years ago, I asked him what was the most important thing he learned. “Just ask!” he proclaimed. Asking for independent, professional advice is the most responsible thing a public official can do. This is especially true when the official is conflicted and is prevented by his blind spots from seeing his conflict situation clearly. Government ethics programs are all about helping officials handle their conflict situations responsibly.
After having criticized this straw man for so many years, it is difficult for public administration ethicists to consider actual government ethics programs as worthy of their attention and, especially, of being improved in ways that would make them work more effectively, to the good both of officials and the public. Therefore, it is natural that these academics have not participated in ethics reform efforts to any appreciable extent, other than with respect to aspirationally-oriented programs.
The result has been that conflicts of interest programs have fallen between the cracks in terms of teaching and in terms of writing. These programs are only touched upon in public sector ethics classes in public administration and political science programs. Since these classes are common in these programs, law professors feel no need to cover the topic.
As for writing, besides my Local Government Ethics Programs (I am a former lawyer and not an academic), there are only two recent non-negative books about government ethics reform in the United States. One of them, on state ethics reform (2005), was written by a political science professor, Beth Rosenson, who had done work for Common Cause before joining academia; the other, written by a law professor, Richard Painter (2009), recommends many reforms to the federal executive branch ethics program, based on his experience as the president's ethics attorney.
The Consequences of Noninvolvement
The penultimate section of the essay looks at the consequences of academic noninvolvement in government ethics reform and the determination of best practices. The most serious consequence is the lack of guidance. The result is that there is little understanding of conflicts of interest in government and, therefore, there are no standards. Anything goes.
Not only does this lack of understanding lead to the institution of poor government ethics programs (or none at all), but it also leaves ethics commissions and their staff with nowhere to turn for the information they need to understand their work. Without this understanding, they make serious mistakes. The biggest mistake is to do nothing. If you don’t know what you’re supposed to do, you wait for something to happen, you are simply reactive. This is the case with the great majority of local ethics commissions.
A third important consequence of academia’s failure is that those who graduate with public administration, political science, and law degrees — that is, those most likely to become government officials in a position to affect the creation, administration, and reform of government ethics programs — learn almost nothing about conflicts of interest programs. My review of 28 online syllabi of public sector ethics courses showed that, among their many hundreds of assigned and recommended readings, not one included an essay by Mark Davies, the most important writer on conflicts of interest programs and the only one who has set forth a program’s essential elements in a clear, readable fashion. Nor do the books most often used in these courses refer to Davies (other than one e-mail communication). Needless to say, there is also no reference to my book or my blog.
Other consequences include the ability of those who oppose government ethics to say almost anything they want, without having to worry that someone will point to scholarly works that show their statements to be questionable. And those who seek ethics reform cannot honestly say that their recommendations are considered best practices authorized by experts in the field. This makes it very easy to oppose effective ethics reform.
Recommendations
What can be done? is the question asked in the final section of the essay. What I propose is for public administration ethicists to decide whether or not they want to have anything to do with conflicts of interest programs. If they do, they should start talking about government ethics programs without prejudice and without insisting they are only about compliance. They need to work with practitioners, discuss issues openly online, as campaign finance-oriented professors do, and get involved with ethics reform efforts.
If they do not want to have anything to do with conflicts of interest programs and their reform, they should state this publicly. They should acknowledge the unfortunate selection of the word “ethics” in the name of nearly all such programs, and find a way to differentiate their work and their courses, so that other academics realize that the field is not being covered in courses, that this is a field in which they might make their mark (if not much money).
Since it is lawyers who draft conflicts of interest codes and administer conflicts of interest programs, and lawyers who find conflicts of interest issues most exciting, law schools would appear the best fit. But lawyers often have a hard time differentiating ethics from laws, and appreciating the importance of, not to mention being interested in, training, advice, and disclosure. They also sometimes have trouble differentiating legal ethics, which involves primarily professional conduct with respect to clients, from government ethics, which involves primarily fiduciary conduct with respect to citizens in a democracy. However, law professors could work these problems out if they wanted to. And they would be more likely to want to if the field were left to them.
I conclude the essay by saying that "The American Law Institute treatise on government ethics [currently being drafted] would be just the project with which to start taking on this role. It is the logical first step in bringing government ethics into law school curricula and law reviews, and starting a valuable discussion of best practices and an ongoing critique of conflicts of interest reform efforts."
Robert Wechsler
Director of Research-Retired, City Ethics
---
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